REPORTS OF CASES ARGUED* AND ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES. DECEMBER TERM, 1856. By BENJAMIN C. HOWARD, COUNSELLOR AT LAW AND REPORTER OF THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES. VOL. XIX. WASHINGTON, D. C. 'WTLIAKM. M. MORRISON AND COMPANY, LAW PUBLISHERS ANDaBOOKSELLERS. 1857.* Entered according to Act of Congress, in the year 1857, by Benjamin C. Howard, in the Clerk’s Office of the District Court of the District of Columbia. BUELL & BLANCHARD, PRINTERS. MORELAND & WHEELER, STEREOTYPERS. WASHINGTON, D. C. SUPREME COURT OF THE UNITED STATES. Hou. ROGER B. TANEY, Chief Justice. Hon. JOHN McLEAN, Associate Justice. Hon. JAMES M. WAYNE, Associate Justice. Hon. JOHN CATRON, Associate Justice. Hon. PETER V. DANIEL, Associate Justice. Hon. SAMUEL NELSON, Associate Justice. Hon. ROBERT C. GRIER, Associate Justice. Hon. BENJAMIN R. CURTIS, Associate Justice. Hon. JOHN A. CAMPBELL, Associate Justice. Caleb Cushing, Esq., Attorney General. William Thomas Carroll, Esq., Clerk. Benjamin C. Howard, Esq., Reporter. Jonah D. Hoover, Esq., Marshal. Mr. Chief Justice Taney made the following remarks: “Gentlemen of the Bar: You are already, I presume, apprized of the calamity which has befallen our Brother, Judge Daniel, in the sudden and painful death of his wife. Our respect and regard for him, and the sincere sympathy “we feel for him personally, as well as our sense of what is due to him as a member of this tribunal, will prevent the court from proceeding to-day with the business of the term. The funeral of Mrs, Daniel will take place to-morrow*, which the members of the court will attend. We shall therefore adjourn until Wednesday, to meet at the usual hour and proceed with the duties of the court.” January 5th, 1857. . * Mr. Chief Justice Taney remarked as follows: “Gentlemen of the Bar: Mr. Carroll, the Clerk of this court, has suffered a painful domestic affliction in the sudden and unexpected death of a son who had just grown up to manhood. The members of the court, as a mark of their respect and sympathy, propose to attend the funeral, which will take place to-day at one o’clock. We shall, on that account, adjourn at half-past twelve.” January 23d, 1857. LIST OF ATTORNEYS AND COUNSELLORS ADMITTED DECEMBER TERM, 1856. Percy Walker, Philip S. Cottle, John Willard, James E. Munford, Josiah Collins, Jr., William H. Crabbe, Daniel S. Printup, James H. Scott, R. C. Gilchrist, N. Richardson, Charles S. Bryant, Harvey Officer, Augustus Hall, Joseph C. Knapp, Joshua L. Brown, Samuel W. Bates, Henry C. Hutchins, David Thaxter, W. Fletcher Sapp, William A. Groves, Thomas Turner, Lymon B. Smith, Samuel N. Salomon, Frederick A. Lane, L. M. Closs, Walter H. Smith, Charles P. Curtis, Jr., R. C. Parsons, William H. Tucker, E. S. Lowman, Henry L. Moss, Cyrus K. Lord, A. D. La Due, James M. Cavanaugh, John B. Onstine, George R. Fairbanks, Morris S. Miller, Alabama. New York. New York. Missouri. North Carolina. Pennsylvania. Georgia. New York. South Carolina. New York. Ohio. Minnesota Territory. Iowa. Iowa. New York. Massachusetts. Massachusetts. Massachusetts. Ohio. Illinois. Kentucky. New York. New York. New York. Nebraska Territory. Ohio. Massachusetts. Ohio. Wisconsin. New York. Minnesota Territory. Wisconsin. Minnesota Territory. Minnesota Territory. Minnesota Territory. Florida. New York. vi LIST OF ATTORNEYS AND COUNSELLORS. William R. Dickerson, Alexander 0. Morton, J. C. Spencer, William Ware Peck, R. Rose, J. Wagner Jermon, P. G. Webster, J. D. B. De Bow, John Me Crack an, W. A. Talbott, Lewis B. Reed, Jr., Henry H. Anderson, Abraham Payne, C. L. Vallandigham, A. V. Hofer, Isaac Fisher, P. Della Torre, David Barclay, R. S. Blackwell, Carlos Tracy, Harvey T. Cleveland, George W. Gayle, S. M. Bowman, Andrew M. Blair, H. P. Vrooman, William G. Bryan, Pennsylvania, New York. New York. Vermont. District of Columbia. Pennsylvania. New York. Louisiana. California. Maryland. New York. New York. Rhode Island. Ohio. Missouri. Pennsylvania. California. Pennsylvania. Illinois. South Carolina. New York. Alabama. California. Wisconsin. Michigan. New York. LIST OF CASES REPORTED. PAGE Babcock v. Wyman.......................................................... ..289 Babin et al. v. Hipp et al..................................................... 271 Baker et al. v. Nachtrieb................................................. ...126 Ballance v. Papin et al................................................. ...342 Ballard et al. v. Thomas.................................................. .382 Beebe et al. v. Russell............................................... ......283 Bell v. Hearne et al................................................ ....252 Betts v. Lewis and Wife..................................................... 72 Blacksmith et al. v. Fellows................................................ 366 Blanc’s Executor et al. v. Cousin............................................ ..202 Boston, City of, v. Richardson............................................... 263 Boyle v. Meegan.......................................................... 130 Branch Bank of Alabama v. McRea et al..................................... 376 Brig Neurea v. United States............................................. 92 Brown v. Duchesne.......................................................... 183 Bryan et al. v. Forsyth...........................................1..............334 Bulkley v. Honold........................................................ 390 Burke v. Gaines et al........................................................ 388 Byers v. Surget..................................................................... Calderwood et al. v. New York and Virginia Steamship Company.....................241 City Bank of Columbus v. United States.................................... .385 Coffman et al. v. Ure..................................................... 56 Coiron et al. v. Millaudon et al............................................. 113 Commercial Mutual Marine Insurance Co. v. Union Mutual Insurance Co..,...........318 Cooper v. Roberts.......................................................... 373 Cotton etal. v. Walton et al........................ ,...................... 355 Cousin v. Blanc’s Executor et al............................................... 202 Curtenius et al. v. Morgan....................................................... 8 Day v. Hartshorn et al.................................................... 211 Dred Scott v. Sandford................................................... "'”*393 Duchesne v. Brown......................................................... *”*183 Dupont de Nemours & Co. v. Vance et al.....................T.^7......7.......”^.”162 Emerson v. Slater........................................... . 224 Ex parte Secombe............................................................'..... 9 Farrelly et al. v. Woodfolk................................................. 288 Fellows v. Blacksmith et al................... .......... ....................... Field v. Seabury et al............;. .............................. fcame v. same...................; # ooo Forsyth v. Bryan et al....... Gaines et al. v. Burke..................................................... 388 Garrison et al. v, Memphis Insurance Company..................L.o'..'..".'.'."^w»312 viii LIST OF CASES REPORTED. PAGE Gladding & Proud v. Stevens....................,.......................... 64 Greene et al. v. Moore.................................................. 69 Greneaux v. Prevost....................................................... 1 Hartshorn et al. v. Day......................................... .•.......211 Hearne et al. v. Bell............................................. ....252 Hill et al. v. Williams............................................... 246 Hipp et al. v. Babin et al............................................ 211 Honold v. Bulkley........................................ ,.............. 390 Honold v. Sturgis.................................................... 393 Jerome v. Platt........................................................ 384 Jones etal. v. Post etal............................................ 150 Judson v. Lathrop.................................................... 66 Lathrop v. Judson..................................................... 66 Le Baron v. United States............................................ 73 Lewis and Wife v. Betts................................. .............. 72 Lewis v. Wolfe et al................................................ .280 Lindsay et al. v! Mordecai et al.................................... .....199 Long et al. v. O’Fallon................................. ..............116 McCormick v. Seymour et al........................................... 96 McCullough etal. v. Roots etal......................................... .349 McRea et al. v. Branch Bank of Alabama......................... .......376 Meegan v. Boyle...................................................... 130 Memphis Insurance Company v. Garrison et al........................... ...312 Michigan Central Railroad Co. v. Michigan Southern Railroad Co. et al.........378 Michigan Southern Railroad Co. et al. v. Michigan Central Railroad Co...........378 Millaudon et al. v. Coiron et al.................................. ......113 Mills, Claimant, v. Vandewater....................................... 82 Moore v. Greene et al...................................................... 69 Mordecai et al. v. Lindsay et al....................................... ...199 Morgan v. Curtenius et al..................................................... 8 Nachtrieb v. Baker et al................................................ 126 New York and Virginia Steamship Company v. Calderwood et al.................241 O’Fallon v. Long et al................................................ 116 Osborn v. Thomas et al............................................... 22 Papin et al. v, Ballance.......................................... -....342 Peralta et al. v. United States...............'................... .......343 Platt v. Jerome.............................................. .......384 Post et al. v. Jones et al.............................................. 150 Pratt et al. v. Reed.......................... ................... .359 Prevostv. Greneaux.................................................. 1 Reed v. Pratt et al.........................................................359 Richardson v. The City of Boston................................... ...263 Roberts v. Cooper........................................................,..373 Rogers et al. v. Steamer St. Charles et al.................... ............108 Roots et al. v. McCullough et al.......................................... 349 Russell v. Beebe et al.............................................. ..283 Sandford v. Dred Scott............................................ ....393 Sandford v. Willot et al.............................................. 79 Schuchardt et al. v. Ship Angelique....................................... 239 Scudday v. Shaffer.................. .......................................16 Seabury et al. v. Field.......................................... ....323 Same v. same.............................................. ...333 Secombe, ex parte..................................................... 9 LIST OF CASES REPORTED. ix PAGE Seymour et al. v. McCormick................................................ 96 Shaffer v. Scudday......................................................... 16 Ship Angelique v. Schuchardt et al...............................................239 Slater v. Emerson......................................... .................224 Steamer St. Charles et al. v. Rogers et al....,.............................. 108 Steamer Virginia v. West etal..................*........................ .....182 Steamboat Sultana v. Tod et al............................................... 362 Stevens v. Gladding & Proud................................................... 64 Sturgis v. Honold........................................................ 393 Surget v. Byers............................................... ............ 303 Sutherland et al. v, United States................................ ...........363 Thomas v. Ballard et al.................,...................................................382 Thomas et al. v. Osborn........................ ............................. 22 Tod et al. v. Steamboat Sultana...........J.................................... 362 Union Mutual Insurance Co. v. Commercial Mutual Marine Insurance Co...............318 United States v. Le Baron .....................t..»......................... 73 United States v. Brig Neurea.........»».................................... 92 United States v. Peralta et al................................. ...;.......... .343 United States v. Sutherland et al............................................ 363 United States v. City Bank of Columbus...............................................385 Ure v. Coffman et al............................................................. 56 Vance et al. v. Dupont de Nemours & Co.............................. .........162 Vandewater v. Mills, Claimant...................................................... 82 Walton etal. v. Cotton et al......;........................................ 355 West et al. v. Steamer Virginia........................................ .;...182 Williams v. Hill et al................................................... ....246 Willot et al. v. Sandford........................................ „........... *19 Wolfe et al. v. Lewis........................................................ ..280 Woodfolk v. Farrelly et al..................................... .’............ 288 Wyman v. Babcock............................................................ 289 I - Cr THE DECISIONS a Jp <£• & OF THE 2 >/ a/ SUPREME COURT OF THEMJJg^ED by virtue of his inherent power. A statute is simply an exertion of that power; its repeal, the withdrawal of the application of the power. The 4 SUPREME COURT. Prevost v. Greneaux. machinery for its collection provided by the statute is paralyzed by the tepeal. We are entitled to the benefit of a strict construction of the statute, as being not only partial and odious, even as it regards citizens of the State, but, as was held by the Supreme Court of the State of Louisiana in the case of the widow and heirs of Benjamin Poydras de la Lande against the Treasurer of the State, even penal in its character. So far as statutes for the regulation of trade impose fines or create forfeitures, they are doubtless to be construed strictly as penal, and not liberally as remedial laws. Mayor v. Davis, 6 Watts and Serg., 269. , Statutes levying duties or taxes upon subjects or citizens are to be construed most strongly against the Government, and in favor of the subjects and citizens, and their provisions are not to be extended by implication beyond the clear import of the language used. U. S. v. Wigglesworth, 2 Story, 369. Ko judgment can be rendered for a penalty given by a statute after the statute is repealed, although the action was commenced before the repeal. Pope v. Lewis, 4 Ala., 487. From these principles and authorities it follows, that the right of the State to claim or recover the foreign succession tax of 1842 is lost from the moment of 'the promulgation of the consular convention of 1853, although the tax might have been claimed and recovered, if proceedings had been instituted, perfected, and executed, before that convention. Mr. Benjamin stated the points as follows: The case is clearly within the jurisdiction of this court; and the only question’ is, whether the court of Louisiana has rightfully construed the treaty. Its decisions under it have been— First. That wherever the rights of the heir vested after the consular convention went into effect, the tax could not be recovered. Succession Dufour, Annual, 392. Secondly. That wherever the right of the heir vested anterior to the date of the treaty, the right of the State vested at the same time. The latter proposition is the one now in dispute. I. At what time, under the laws of Louisiana, did the rights of the State to the tax of ten per cent, vest ? Fortunately, the response to this question is entirely free from difficulty, as the point had been settled by a series of adjudications long prior to the controversy in this cause. The Supreme Court' of that State has held, ever since the year 1831, that, under the State statute, the rights of the heir DECEMBER TERM, 1856. 5 Prevost v. Greneaux, and of the State both vested at the instant of the testator’s death. Armand’s Heirs v. His Executors, 3 L. R., 337* Ques-sart’s Heirs v. Canonge, 3 L. R., 561; Succession of Oyon, 6 Rob. R., 504; Succession of Blanchard, 17 Annual, 392; Succession of Dufour, 18 Annual, 392; Succession of Deyraud, 9 Rob. R., 358. The question had arisen in Louisiana under every aspect.' In the first two cases cited, the law imposing the tax had been repealed before the collection of the tax, but subsequent to the death of the party under whom the heirs claimed. The court held, that the title of the State had vested at the death, and that the tax could be collected, notwithstanding the repeal of the statute, In the two cases next cited, the law imposing the tax was passed after the testator’s death, but before the heirs had received the succession. The court held, that the right of the zheirs had vested in the whole of the estate at the death of the testator, and that the tax could not be collected. In the fifth case cited, the convention with Erance was passed before the testator’s death; and the court held, that the tax could not be collected, because the heir’s right vested at the death. * In the sixth case, the death occurred before the passage of the convention; and the court held, that the right of the State had accrued at the death, and the tax could be collected. And the whole series of adjudications on the construction of a State statute, during a period of twenty-five years, is unbroken by a single contradicting case, or even by the dissent of a single judge'. Under the rules, then, which this court has established for itself,it will take it for granted, without further inquiry or examination, that a right to one-tenth of Prevost’s succession had vested in the State of Louisiana anterior to the date of the treaty in question. . H. The only remaining question is, whether the treaty was intended to divest any title acquired prior to its passage. The terms of the treaty are entirely prospective, and its language appears too plain to require any reference to canons of construction. Frenchmen, after its date, are to be considered, for all the / purposes of the treaty, as citizens of Louisiana. But the claim of the State would be good against its own citizens after the repeal of the taxing law, because vested prior to the repeal, as already shown by the authorities cited. Erqo, that claim is good against the Frenchman. 6 SUPREME COURT. Prevost v. Greneaux. Mr. £Jh.ief Justice TANEY delivered thd opinion of the court. This is a writ of error to the Supreme Court of the State of Louisiana. It appears that a certain Francois Marie Prevost, an inhabitant of that State, died in the year 1848 intestate and without issue, and possessed of property to a considerable amount. He left a widow; and, as no person appeared claiming as heir of the deceased, the widow, according to the laws of the State, was put in possession of the whole of the property by the proper authorities, in December, 1851. She died in March, 1853. In January,, 1854, Jean Louis Prevost, a French subject residing in France, presented himself by his agent in Louisiana as the brother and sole heir of Francois Marie Prevost, and established his claim by a regular judicial proceeding in court. The laws of Louisiana impose a tax of ten per cent, on the value of all property inherited in that State by any person not domiciliated there, and not being a citizen of any State or Territory of the United States. This tax is disputed by the plaintiff in error, upon the ground that the law of Lpuisiana is inconsistent with the treaty or consular convention with France. This treaty was signed on the 23d of February, 1853, ratified by the United States on the 1st of April, 1853, exchanged on the 11th of August, 1853, and proclaimed by the President on the 12th of August, 1853. The 7th article of this treaty, so far as concerns this case, is in the following words: “In all the States of the Union whose laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves; and in no case shall they be subjected to taxes on transfers, inheritance, or any others, different from those paid by the latter, or to taxes which shall not be equally imposed.” Proceedings were instituted in the State courts by the plaintiff in error to try this question, which were ultimately brought before the Supreme Court of the State. And that court decided that the right to the tax was complete, and vested in the State upon the death of Francois Marie Prevpst, and was not affected by the treaty with France subsequently made. DECEMBER TERM, 1856. 7 Prevost v. Greneaux. We can see no valid objection to this judgment. The plaintiff in error, in his petition to be recognised as heir, claimed title to all the separate property of Francois M. Pre-yost and his widow, then in the hands of the curator, and of all his portion of the community property, and of all the fruits and revenues of his succession from the day of the death of -his brother. And, in adjudicating upon this claim, the court recognised the rights of the appellant, as set forth in his petition, and decided that he became entitled to the property, as heir, immediately upon the death of Fr. M. Prevost. Now, if the property vested in him at that time, it could vest only in the manner, upon the conditions authorized by the laws of the State. And, by the laws of the State, as they then stood, it vested in him, subject to a tax of ten per cent., payable to the State. And certainly a treaty, subsequently made by the United States with France, could not divest rights of property already vested in the State, even if. the words of the treaty had imported such an’ intention. But the words of the article, which we have already set forth, clearly apply to cases happening afterwards—not to cases where the party appeared, after the treaty, to assert his rights, but to cases where the right afterwards accrued. And so it was decided by the Supreme Court of the State, and, we think, rightly.. The constitutionality of the law is not disputed, that point having been settled in this court in the case of Mayer v. Grima, 8 How., 490. In affirming this judgment, it is proper to say that the obligation of the, treaty and its operation in the State, after it was made, depend upon the laws of Louisiana. The treaty does not claim for the United States the right of controlling the succession. of real or personal property in a State. And its operation is expressly limited “to the States of the Union whose laws permit it, so long and to the same extent as those laws shall remain in force.” And, as there is no act of the Legislature of Louisiana repealing this law and accepting the provisions of the treaty, so as to secure to her citizens similar rights in France, this court might feel some difficulty in saying that it was repealed by this treaty, if the State court had not so expounded its own law, and held that Louisiana was one of the States in which the proposed arrangements of the treaty were to be carried into effect. Upon the whole, we think there is no error in the judgment of the State court, and it must therefore be affirmed. 8 SUPREME COURT. Morgan n. Curtenius, et al. Benjamin F. Morgan, Plaintiff in Error, v. Alfred G. Cur-TENIUS AND JOHN L. GRISWOLD. Where there appears to be an omission in the record of an important paper, which may be necessary for a correct decision of the case of the defendant in error, who has no counsel in court, the court will, of its own motion, order the case to be continued and a certiorari to be issued to bring up the missing paper.. This case stood upon the trial docket, coming from the State of Illinois. It was submitted on a printed argument by Mr. Washburne for the plaintiff in error, no counsel appearing for the defendant. Whereupon, upon an inspection of the record, the court expressed the following opinion: Mr. Chief Justice TANEY delivered the opinion of the court. Upon examining the transcript of the record filed in this case, we find that it is imperfect, and that a paper has been omitted which may be important to the decision of the matter in controversy between the parties. The bill of exceptions upon which the cause is brought before this court, after stating that the defendants read in evidence the deed from Bogardas, to Underhill, under which they claim title, proceeds in the following words: “The defendants next offered in evidence to the jury a certificate of the register of the land office at Quincy, dated ----------, which is in the words and figures following, to w it. But the certificate thus referred to is not inserted in the exception, nor its contents stated in any part of the transcript. And as this paper was offered in evidence by the defendants, it must have been deemed material to their defence; and the court think it would not be just to them to proceed to final judgment, without having this paper before us. And as the defendants have no counsel appearing in their behalf in this court, the court of its own motion order the case to be continued, and a certiorari issued in the usual form to the Circuit Court, directing it to supply the omission above mentioned, and return a full and correct transcript to this court, on or before the first day of the next term. Order. Upon an inspection of the- record of this cause, it appearing to the court here that the bill of exceptions states that “the defendants offered in evidence to the jury a certificate of the DECEMBER TERM, 1856. 9 Ex Parte Secombe. register of the land office at Quincy, dated-------------, which is in the words and figures following, to wit;” and that the said certificate, thus referred to, is not inserted in the exception, nor its contents stated in any part of the transcript, on consideration whereof, it is now here ordered by this court, that a writ of certiorari be and the. same is hereby awarded, to be issued forthwith, and to be directed to- the judges of the Circuit Court of the United States for the district of Illinois, commanding them to supply the omission above mentioned, and return a full and correct transcripUto this court, with this writ, on or before the first day of the next term of this court. Ex Parte, in the Matter of David A. Secombe. By the rules and practice of common-law courts, it rests exclusively with the court to determine who is qualified to become or continue one of its officers, as an attorney and counsellor of the court; the power being regulated, however, by a sound and just judicial discretion—guarding the rights and independence of the bar as well as the dignity and authority of the court. The local law of the Territory of Minnesota has regulated the relation between courts and attorneys and counsellors, but has not essentially changed the common-law principle. The Minnesota statute authorizes the court to dismiss an attorney pr counsellor if he does not maintain the respect due to courts of justice and judicial officers, or for not conducting himself with fidelity to the court. The Supreme Court of the Territory dismissed the relator from the office of counsellor and attorney of the court, stating in the sentence of dismissal that he was guilty of the offences above mentioned, but not specifying the act or acts which, in the opinion of the court, constituted the offence. The order of dismissal is a judicial act done in the exercise of a judicial discretion vested in the court by law; and a mandamus cannot be issued by a superior or appellate court,.commanding it to reverse its decision and restore the relator to the office he has lost. This was a motion for a mandamus to be directed to the judges of the Supreme Court of the Territory of Minnesota, commanding them to vacate and set aside an order of the court, passed at January term, 1856, whereby the said Secombe was removed from his office as an attorney and counsellor of that court. The subject was brought before this court by the following petition and documents in support of it: To the Hon. the Judges of the Supreme Court of the United States: The petition of David A. Secombe respectfully showeth: That he resides in the city of St. Anthony, in the Territory of Minnesota; that on the ninth day of July, 1852, he was duly admitted and sworn to practice as an attorney and conn- 10 SUPREME COURT. Ex Parte Secombe. sellor at law and solicitor in chancery of the said Supreme Court of the Territory of Minnesota, and was thereby entitled also to practice as such in the various District Courts of said Territory, as will appear by the certificate of the clerk of the said Supreme Court, hereunto annexed and made part of this petition; that from the said time up to the 5th day of February, 1856, he was a practising attorney and counsellor as aforesaid in the said courts, and solely thereby obtained the means of support for himself and his family; that on the said 5th day of February, an order of the said Supreme Court was made, and entered of record, to remove him from his said office of attorney and counsellor, and to forbid and prohibit him from practising as such attorney and counsellor in any of the said courts, an exemplification of which said order, with the certificate of the clerk of the said court accompanying the same, is hereunto annexed, and made part of this petition; that, previously to . the making and entry of said order, no notice or information whatever was given to or had by him, that any accusation whatever had been made or entertained, or any proceedings had or were about to be made, entertained, or had, against or in relation to him, in the said premises; that he was not present in court at the . time of the making and entry of said order, nor did he have any knowledge whatever of the same until several days thereafter, and then only by rumor; that there existed no good cause whatever, as your petitioner believes, for the making of the said order; that he has no knowledge or information, or means of obtaining either, save by rumor, of the alleged cause of the making of the said order; that in consequence of the making and entry of the said order, he has been, and now is hindered and prevented from practising as such attorney and counsellor in any of the said courts, and thereby has lost the said means of providing for the support of himself and his family; that he believes that the said order of court is not only in fact entirely without cause, but also in law wholly null and void; and that in the said premises “he has been deprived of his liberty and property without due process of law.” Wherefore, your petitioner prays that this honorable court will allow and cause to be issued the United States writ of mandamus to the judges of the Supreme Court of the Territory of Minnesota aforesaid, commanding them to vacate, set aside, and disregard, the said order, of court by them made and entered, that thereby speedy justice may be done to your petitioner in this behalf; and thus will your petitioner, as in duty bound, ever pray. David A. Secombe. Dated May 80, 1856. DECEMBER TERM, 1856. 11 Ex Parte Secombe. District of Columbia, County of Washington, ss: Then comes before me, personally, David A. Secombe, the above and foregoing named petitioner, and being by me duly sworn, deposes and says, that the statements made in the above and foregoing petition, by him subscribed, are true of his own knowledge, except to those matters therein stated on his information or belief; and as to those matters, that he believes them to be true. [seal.] N. Callan, J. P. Supreme Court, Territory of Minnesota: Ordered, That Isaac Van Etten, Theodore Parker, De Witt C. Cooley, David A. Secombe, William H. Welch, Charles L. Willis, Lucas R. Stannard, Edward L. Hall, Warren Bristol, and William H. Wood, be sworn and admitted to practice as attorneys and counsellors at law and solicitors in chancery of this court. I, George W. Prescott, clerk of the Supreme Court above named, certify that the above is a true copy of an order of said court, entered of record upon the “minutes of court” for and upon the 9th day of July, A. D. 1852, being the 4th day of the general term of said court for said year. In testimony whereof, I have hereunto set my hand [seal.] and affixed the seal of said Supreme Court, at St. Paul aforesaid, this 7th day of May, A. D. 1856. George W. Prescott, Clerk. . Supreme Court, Territory of Minnesota: Sksvkvi General Term, A. D. 1856, 17th Day, Tuesday Morning, February 5, 1856.' Court met pursuant to adjournment. Present, Chief Justice Welch and Justice Chatfield. It appearing to this court that David A. Secombe, one of the attorneys thereof, has by his acts as such in open court, at the present term thereof, been guilty of a wilful violation of the second subdivision of section seven of chapter ninety-three of the revised statutes of this Territory, and also of a violation of that part of his official oath as such attorney by which he was sworn to conduct himself with fidelity to the court: It is therefore . Ordered, That the said David A. Secombe be and he hereby is removed from his office as an attorney and counsellor of this 12 SUPREME COURT. Ex Parte Secombe. court, and of the several District Courts of this Territory, and that he be henceforth forbidden and prohibited from practising as such attorney in any of said courts. It is further Ordered, That the clerk of this court deliver to said David A. Secombe a copy of this order. A true record. Attest: George W. Prescott, Clerk. I, George W. Prescott, clerk of the Supreme Court in and for the Territory of Minnesota, certify the foregoing to be a true and complete copy of the order of court made and entered of record as above set forth on said 5th day of said February, A. D. 1856; and I further certify, that the above and foregoing is the whole and entire record in any way or manner relating to the said order of court at the said term or at any other term; and that the said order was made and entered of record in the following and no other manner, to wit: On the said day, the said David A. Secombe not being present in court, as the said judges rose to leave the court room after having fixed the adjournment day for holding said court, one of the said judges delivered to the undersigned clerk the said Qrder in writing, directing the same to be entered of record as the order of said court, and the said court was thereupon immediately adjourned to the 15th day of July then next. And no further or other order whatever in relation to the subject matter of the said order was made at the said term. In testimony whereof, I have hereunto set my hand [seal.] and affixed the seal of said court, at St. Paul, this 7th day of May, A. D. 1856. George W. Prescott, Clerk. SUPREME COURT OF THE UNITED STATES. The United States ex relatione David A. Secombe v. The Judges of the Supreme Court of Minnesota Territory. To the Judges of the Supreme Court of the Territory of Minnesota: Please to take notice, that I shall move the Supreme Court of the United States, on Friday of the first week of the next term thereof, to be held at the Capitol in the city of Washington, in the District of Columbia, on the first Monday of December next, at the going in of the court, or as soon thereafter as counsel can be heard, for a rule, or order, upon the judges of the Territory of Minnesota, requiring them to vacate, annul, an order made by that court on the 5th day of February, 1856, rempving David A. Secombe from his office as attorney and counsellor of said court and of the District Courts of said Territory, or show cause before the said Su DECEMBER TERM, 1856. 13 Ex Parte Secombe. preme Court of the United States why a writ of mandamus should not be issued to compel the said judges so to do. And the said motion will be made upon the petition of the said David A. Secombe, hereto annexed. C. Cushing-, Dated May 30, 1856. Attorney for Petitioner. The case was argued by Mr. Badger in support of the motion. Mr. Chief Justice TANEY delivered the opinion of the court. A mandamus has been moved for, by David A. Secombe, to be directed to the judges of the Supreme Court of the Territory of Minnesota, commanding them to vacate and set aside an order of the court, passed at Januaiy term, 1856, whereby the said Secombe was removed from his office as an attorney and counsellor of that court. In the case of Tillinghast v. Conkling, which came before this court at January term, 1829, a similar motion was overruled by this court. The case is not reported; but a brief written opinion remains on the files of the court, in which the court says that the motion is overruled, upon the ground that it had not jurisdiction in the case. The removal of the attorney and counsellor, in that case, took place in a District Court of the United States, exercising the powers of a Circuit Court.; and, in a court of that character, the relations between the court and the attorneys and counsellors who practise in it, and their respective rights and duties, are regulated by the common law. And it has been well settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed. The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court, as the rights and dignity of the court itself. .It has, however, been urged at the bar, that a much broader discretionary power is exercised in courts acting upon the rules of the common law than can be lawfully exercised in the Territorial court of Minnesota; because the Legislature of i6- Territorf has, by statute, prescribed the conditions upon which a person may entitle himself to admission as an attor 14 SUPREME COURT. Ex Parte Secombe. ney and counsellor in its courts, and also enumerated the offences for which he may be removed, and prescribed the mode of proceeding against him. And the relator complains that it appears by- the transcript from the record, and the -certificate of the clerk, which he’ filed with his petition for a mandamus, that in the sentence of removal he is not found guilty of any specific offence which would, under the statute of the Territory, justify his removal, and had no notice of any charge against him, and no opportunity of being heard in his defence. z It is true that, in the statutes of Minnesota, rules are prescribed for the admission of attorneys and counsellors, and also for their removal. But it will appear, upon examination, that, in describing some of the offences for which they may be removed, the statute has done but little, if anything, more than enact the general rules upon which the courts of common law have always acted; and have not, in any material degree, narrowed the discretion they exercised. Indeed, it is difficult, if not impossible, to enumerate and define, with legal precision, every offence for which an attorney or counsellor ought to be removed. And the Legislature, for the most part, can only prescribe general rules and principles to be carried into execution by the court with judicial discretion and justice as cases may arise. The revised code of Minnesota, (ch. 93, sec. 7, subdivision 2,) makes it the duty of the attorney and counsellor “to maintain the respect due to courts of justice and judicial officers.” The 19th section of the same chapter enumerates certain offences for which an attorney or counsellor may be removed; and, among others, enacts that he may be removed for a wilful violation of any of the provisions of section 7, above mentioned. And, in its sentence of removal, the court say that the relator, being one of the attorneys and counsellors of the court, had, by his acts as such, in open court, at the term at which he was removed, been guilty of a wilful violation of the provision above mentioned, and also of a violation of that part of his official oath by which he was sworn to conduct himself with fidelity to the court. K The statute, it will be observed, does not attempt to specify the acts which shall be deemed disrespectful to the court or the judicial officers. It must therefore rest with the court to determine what acts amount to a violation of this provision; and this is a judicial power vested in the court by the Legislature. The removal of the relator, therefore, for the cause above mentioned, was the act of a court done in the exercise of a judicial discretion which the law authorized and required DECEMBER TERM, 1856. 15 Ex Parte Secombe. it to exercise. And the other cause assigned for the removal stands on the same ground. It is not necessary to inquire whether this decision of the Territorial court can be reviewed here in any other form of proceeding. But the court are of opinion that he is not entitled to a remedy by mandamus. Undoubtedly the judgment of an inferior court may be reversed in a superior one which ' possesses appellate power over it, and a mandate be issued, commanding it to carry into execution the judgment of the appellate tribunal. But it cannot be reviewed and reversed in this form of proceeding, however erroneous it may be or supposed to be. And we- are not aware of any case where a mandamus has issued to an inferior tribunal, commanding it to reverse or annul its decision, where the decision was in its nature a judicial act, and within the scope of its jurisdiction and discretion. These principles apply with equal force to the proceedings adopted by the court in making the removal. The statute of Minnesota, under which the court acted, directs that the proceedings to remove an attorney or counsellor must be taken by the court, on its own motion, for matter within its knowledge; or may be taken on the information of another. And, in the latter case, it requires that the information should be in writing, and notice be given to the party, and a day given to him to answer and deny the sufficiency of the accusation, or deny its truth. In this case, it appears that the offences charged were committed in open court, and the proceedings to remove the relator Were taken by the court upon its own motion. And it appears by his affidavit that he had no notice that the court intended to proceed against him; had no opportunity of being heard in his defence, and did not know that he was dismissed from the bar until the term was closed, and the court had adjourned to the next term. Now, in proceeding to remove the relator, the court was necessarily called on to decide whether, in a case where the offence was committed in open court, and the proceeding was had by the court on its own motion, the statute of Minnesota required that notice should be given to the party, and an opportunity afforded him to be heard in his defence. The court, it seems, were of opinion that no notice was necessary, and proceeded without it; and, whether this decision was erroneous or not, yet it was made in the exercise of judicial authority, where the subject-matter was within their jurisdiction, and it cannot therefore be revised and annulled in this form of proceeding. 16 SUPREME COURT. Shaffer v. Scudday. Upon this view of the subject, it would be useless to grant a rule to show cause; for if the Territorial court made a return stating what they had done, in the precise form in which the sentence of dismissal now appears in the papers exhibited by the relator,. a peremptory mandamus could not issue to restore him to the office he has lost. The motion must .therefore be overruled. William A. Shaffer, Plaintiff in Error, v. James A. Scudday. In 1§41, Congress granted to the State of Louisiana 50(1,000 acres of land, for the purposes of internal improvement, and in 1849 granted also the whole of the swamp and overflowed lands which may be found unfit for cultivating. In both cases, patents were to be issued to individuals under State authority. In a case of conflict between two claimants, under patents granted by the State of Louisiana, this court has no jurisdiction, under the 25th section of the judiciary act, to review the judgfnent of the Supreme Court of Louisiana, given in favor of one of the claimants. This case was brought up from the Supreme Court of Louisiana by a writ of error issued under the 25th section of the judiciary act. . The case is fully stated in the opinion of the court. It was argued by Mr. Benjamin for the plaintiff in error, and Mr. Taylor for the defendant. Upon the question of jurisdiction, Mr. Benjamin's point was as follows: The Supreme Court of Louisiana decided, by a decree reversing the judgment of the District Court, that the Secretary of the Interior had no authority to make the decision revoking Scudday's location, and held his title superiorto Shaffer’s, who claimed under an entry made on the authority of the Secretary’s decision. The case is therefore before the court under that clause of the 25th section of the judiciary act which empowers it to take appellate jurisdiction from the highest State courts, where “ is drawn in question the validity of an authority exercised under the United States, and the decision is against the validity,” and is fully within the principles decided in Chouteau v. Eckhart, 2 Howard, 344. The sole question in the cause, then, is, whether the Secretary had authority to decide, and did rightly decide, that Scudday’s location was null, and must be revoked. This is hardly an open question in this court. The 8th section of the a$t of 1841, under which Scuddfiy claims, directs the locations to be made on il any public land, DECEMBER TERM, 1856. 17 Shaffer V. Scudday. except such, as is or may be reserved from sale by any law of Congress.” This court has decided in the cases above cited, and particularly in that in 15 Howard, that the act of 1841 vested no present title in the State of Louisiana, but was a mere authority to enter lands in the same manner as individuals could enter them; and that the entry under a location made by virtue of a State warrant, and backed by a State patent, did not confer the fee in the land, which is only divested by a patent issued by the United States. How, although the Secretary of the Interior approved the location, he did so under the mistaken supposition that the land was “public land,” whereas, in point of fact, Congress had already conveyed title to it by the grant in the swamp-land law of 1849. Before any patent was issued by the United States, therefore, Scudday’s entry was revoked under the authority which has been universally conceded to exist in the offices of the Land Office, since the decision of this court, made thirty years ago, and never subsequently called in question. Chotard v. Pope, 12 Wheaton, 587. The case may be summed up in few words, as follows: 1st. Shaffer claims title under a grant made by statute of the United States, vesting the fee in him as fully as a patent would, if issued directly to him. Strother v. Lucas, 12 Peters, 454; Chouteau v. Eckhart, 2 Howard, 344. 2d. Scudday claims under an inchoate title from the United States, not only still incomplete, but which it is impossible ever to render complete, and his title has been erroneously preferred by the Supreme Court of Louisiana, only because he holds a patent from the State. But no State authority can confer a right in land sufficient to eject a patentee under the United States. Biagnell v. Brod-erich, 13 Peters, 436. J/r. Taylor objected to the jurisdiction of this court, upon the following ground: 1. By reference to the decision of the Supreme Court of Louisiana, it will be seen that the question raised as to the construction of the act of 1849 was not decided by the court. The-court expressly said that they did “not consider it necessary iQ,ia Cn^e Question.” “The construction of the act of 1849, by the Secretary of the Interior, may be strictly correct, and yet it does not follow that the location of a warrant, under sterna!-improvement law of 1841, which had been approved by the proper department of the Government, and for which; vol. xix. 2 18 SUPREME COURT. Shaffer V. Scudday. a patent had been subsequently issued by the State, could be revoked, so as to destroy the title conferred by the patent. The question would have been different, if, after the passage by Congress of the act of 1849, the United States had granted the land away from the State of Louisiana. Such was not the case; and as both the acts of 1834 and of 1849 were grants of land to the State, we cannot go behind the patent which the State has granted.” From this it is clear that there was no decision against the validity of a treaty or statute of, or an authority exercised under, the United States, &c., &c., in the highest court of Louisiana; and that inasmuch as no error can be assigned or regarded as a ground of reversal, other “ than such as appears on the face of the record, and immediately respects the questions of validity or construction,” &c., therefore, there was no right to a writ of error in this case, arid that the ease must be dismissed for want of jurisdiction. 1 Statutes at Large, p. 85, sec. 25; Almonester v. Kenton, 9 Howard, 1. Mr. Chief Justice TANEY delivered the opinion of the in conformity to the act of the Legislature of 1844. The reason assigned by the Secretary of the Interior was, that these locations had been made subsequent to the passage of the act of Congress of 1849, granting to the State all the swamp and overflowed lands. He states, in his opinion, that ne considered the words used in the first section of that act as 20 SUPREME COURT. Shaffer v. ScuMay. importing a grant in present^ and as confirming a right to the land, though other proceedings were necessary to perfect the title; and that when the title was perfected, it had relation hack to the date of the grant. His approval to the State, of the location of the land in controversy, under the internal-improvement law ■ of 1841, was revoked, but the land was at the same time approved to the State, as having a vested title to it, under the act of 1849,, and taking effect from the date of the passage of the act. The controversy between the parties arises upon these two patents, both granted by the State of Louisiana—the one to Scudday, under the grant made by the act of Congress of 1841, for the purposes of internal improvement; the other to Shaffer, under the grant made by the act of 1849, for the purpose of draining the swamp lands. The case came regularly before the Supreme Court of the State; and that court, after stating that it was unnecessary to decide whether the construction placed upon the act of 1849, by the Secretary of the Interior, under which he revoked his approval of Scudday’s location, was erroneous or not, proceeded to express their opinion as follows: “ It is certain (say the court) that the Legislature could not have disposed of the land as belonging to the State, under the provisions of that act, [the act of 1849,] until she had complied with the conditions imposed on her by the act of Congress, and until the approval of the Secretary of the Treasury; but if she had not chosen to avail herself of the right given to her to appropriate these lands as swamp lands by defraying the expenses of locating them, she had still the right of locating them under the internal-improvement law of 1841, which was unconditional. The construction of the act of 1849, by the Secretary of the Interior, may be strictly correct; and yet it does not follow that the location of a warrant, under the internal-improvement law of 1841, which had been approved by the proper department of the Government, and for which a patent had been subsequently issued by the State, could be revoked, so as to destroy the title conferred by the patent. The question would have been different, if, after the passage by Congress of the act of 1849,' the United States had granted the land away from the State of Louisiana. Such was not the case; and as both the acts of 1841 and of 1849 were grants of land to the State, we cannot go behind the patent which the State has granted. The patent can only be attacked on the ground of error or fraud. It is true that a patent issued against law is void; but in the present case the patent and all the proceedings on which it was based were in conformity to DECEMBER TERM, 1856. 21 Shaffer, v. Scudday. the laws. As between the Government of the United States and the State of Louisiana, a question will arise, whether the State is not entitled to an additional quantity of land, to be located under the act of Congress of 1841, in consequence of the swamp lands having been appropriated for locations of warrants issued under the internal-improvement act; but we are of opinion that the title which the State has granted to the plaintiff, and for which she has been paid, is unaffected by the acts of the officers of the United States Government and of the State Government, done since the patent was issued.” Upon these grounds, the Supreme Court of the State gave judgment in favor of Scudday, and this writ of error is brought to revise that decision. It does not appear from the opinion of the court, as above stated, that any question was decided that would give this court jurisdiction over its judgment. The land in dispute undoubtedly belonged to the State, under the grants made by Congress, and both parties claim title under grants from the State. The construction placed by the Secretaiy upon the act of 1849, and the revocation of his order approving the location of Scudday, did not and was not intended to re-vest the land in the United States. On the contrary, it affirmed the title of the State; and its only object was to secure to Louisiana the full benefit of both of the grants made by Congress, and leaving it to the State to dispose of the lands to such persons and in such manner as it should by law direct. It certainly gave no right to the plaintiff in error. He admits the title of the State, and claims under a patent granted by the State. Now, whether this patent conveyed to him a title or not, depended altogether upon the laws of Louisiana, and not upon the acts of Congress or the acts of any of the officers or authorities of the General Government. It was a question, therefore, for the State courts. And the Supreme Court of the State have decided that this patent could convey no right to the land in question, .because the State had parted from its title by a patent previously granted to Scudday, the defendant in error. The right claimed by the plaintiff in error, which was denied to him by the State court, did not therefore depend upon any act of Congress, or the validity of any authority exercised under the United States, but exclusively upon the laws of Louisiana. And'the Supreme Court of the State have decided that, according to these laws, he had no title, and that the land in question be-longed to the grantee of the elder patent. We have no authority to revise that judgment by writ of error; and this writ must therefore be dismissed for want of jurisdiction. 22 SUPREME COURT. Thomas et al. v. Osborn. William Thomas, Southworth Barnes, Nathaniel Russell, AND OTHERS, OWNERS OF THE BARQUE LAURA, APPELLANTS, v. James W. Osborn. The master of a vessel has power to create a lien upon it for repairs and supplies obtained in a foreign port in a case of necessity; and he does so without a bottomry bond, when he obtains them, in a case of necessity, on the credit of the vessel. It is not material whether the implied hypothecation is made directly to the furnishers of repairs and supplies, or to one who lends money, on the credit of the vessel, in a case of necessity, to pay such furnishers. This power of the master extends to a case where he is charterer and special owner pro hac vice. But this authority only exists in cases of necessity, and it is the duty of the lender to see that a case of apparent necessity for a Ioan exists. Hence, where the master had received freight money, and, with the assistance of the libellants, invested it in a series of adventures as a merchant, partly carried - on by means of the vessel, the command of which he had deserted for the purpose of conducting these adventures, and money was advanced by the libellants to enable the master to repair and supply the vessel, and purchase a cargo to be transported and sold in the course of such private adventures; and the freight money earned by the vessel was sufficient to pay for the repairs and supplies, and might have been commanded for that use if it had not been wrongfully diverted from it by the master, with the assistance of the libellants, , it was held that the latter had no lien on the vessel for their advances. This was an appeal from the Circuit Court of the United States for the district of Maryland. It was a libel filed in the District Court by James W. Osborn, of the city of Baltimore, against the barque Laura, her tackle, apparel, and furniture, Osborn being the assignee of Loring & Co., merchants in Valparaiso. The barque Laura belonged to Plymouth, in Massachusetts, and the lien claimed was for supplies and repairs furnished to the vessel at Valparaiso. The District Court decreed that there was due to the libellant the sum of $2,910.23, with interest from the 1st of April, 1852, which decree was affirmed in the Circuit Court. The case was argued at the preceding term, and held under a curia advisare vult until the present. The circumstances of the case are set forth with great particularity in the opinion of the court, and need not be repeated. It was argued by Messrs. Brune and Brown for the appellants, and by Messrs. Wallis and J. H. Thomas for the appellee. Some of the points made by counsel related to particular items in the accounts between the parties, which it is not deemed necessary to notice in this report. Those which re DECEMBER TERM, 1856. *23 Thomas et al. v. Osborn. ferred to the points decided by the court were the following, viz: First. That no lien on the Laura was created for the expenses paid and supplies furnished by Loring & Co., as per their account, and that Phineas Leach, on whose order or request they were paid .and furnished, was not then the master of the barque, and no one but the master can create an implied lien on a vessel. Conkling’s Admiralty, 59; Flanders on Shipping, 181; Flanders’s Maritime Law, 174, 175, 186; Story on Agency, sects. 116 to 124; Curtis on Merchant Seamen, 76—165 to 185; The St. Jago de Cuba, 9 Wheaton, 409, 416; The Phebe, Ware, 275; Sarchet v. Sloop Davis, Crabbe, 199, 200, 201; Jones v. Blum, 2 Richardson, 475, 476, 479, 480; Thorn v. Hicks, 7 Cowen, 700; James v. Bixley, 11 Mass., 37, 38, 40, 41; Sproat v. Donnell, 20 Maine, 187,188; Thompson v. Snow, 4 Maine, 268, 269; Mann v. Fletcher, 1 Gray, (Mass.,) 128, 129, 130; Webb v. Peirce, 1 Curtis C. C. R., 105 to 113; Reeve v. Davis, 1 Ad. and E., 312; Minturn v. Maynard, 17 Howard, 477; The Aurora, 1 Wheaton, 103; Greenway v. Turner, 4 Md., 296, 303, 304; Young zv Brander, 8 East., 12; Frazer v. Marsh, 13 ib., 238; Bogart, v. The John Jay, 17 Howard, 401; Abbot on Shipping, 128; 1 Bell’s Com., 506; The Jane, 1 Dod., 461; 2 Starr’s Institutions, 953. 955, 962, 966; Gilpin, 543. Second. At the time when the supplies in question were furnished, Leach had ceased to be captain, and had become a merchant, doing business in Valparaiso, in the counting-room of Loring & Co. As to the Laura, he was a wrong-doer, improperly detaining her from her owners, and using her as his own. And the facts which came to the knowledge of Loring & Co. were sufficient to have put them on the inquiry as to the legality of the right which Leach claimed to exercise over the Laura, and such an inquiry would have enabled them to ascertain that he had no such right. They had therefore constructive notice of all the facts to which such an inquiry might have led. Curtis on Seamen, 151 to 153"; Carr v. Hector, 1 Curtis C. C. R., 393, and cases there cited; Ringgold v. Bryan, 3 Md. Ch. R., 493; Magruder v. Peter, 11 G. and J., 243; Baynard v. Korns, 5 Gill, 468; Oliver v. Piatt, 3 How., 479, 495; Harrison v. Vose, 9 How., 372. The points made on the part of the appellee, so far as they were included in the decision of the court, were: J^at whether Leach, by the terms of the contract under which he navigated the barque, was or was not to be regarded as her temporary owner at the time when the repairs and supplies in controversy were furnished^ and whether the gen 24 SUPREME COURT. Thomas et al. v. Osborn. eral owners were or were not bound personally by his contracts for necessaries, he was at all events master of the barque, and imposed a lien in rem, by ordering and receiving such repairs and supplies for her in a foreign port. His relation to the vessel, so far as this legal consequence of his acts is involved, was not altered by his having temporarily intrusted Easton, his mate, with her navigation, nor was the responsibility of the vessel herself to Loring & Co., for repairs and supplies, at all affected by the secret agreement between Leach and the owners, of which Loring & Co. were ignorant. The General Smith, 4 Wheaton, 438; The Brig Nestor, 1 Sumner, 78; The Schr. Tribune, 3 Sumner, 149, 150; Arthur v. Schr. Cassius, 2 Story, 92 to 94; The Barque Chusan, ib., 467; The William and Emmeline, 1 Blatchford and Howland, 71; Webb v. Pierce, 1 Curtis, 110; Arthurs. Barton, 6 Mees, and Wellsby, 142; The St. Jago de Cuba, 9 Wheaton, 409; Rich v. Coe, Cowper, 636; Reeve v. Davis, 1 Adol. and Ellis, 315; Sarchet v. Sloop Davis, Crabbe, 201; Stoiy on Agency, sects. 36, 120; Scofield v. Potter, Davis, 397; North v. Brig Eagle, Bee’s Rep., 78; L’Arina v. Brig Exchange, ib., 198; 1 Bell’s Com. 525, 526; The Virgin, 8 Peters, 552, 553; Hays v. Pacific Steamboat Co., 17 Howard, 598, 599; Peyroux v. Howard, 7 Peters; 341; Bevans v. Lewis, 2 Paine’s C. C. Rep., 207. ' 2. That even if Easton is to be regarded as master, at the time When the repairs and supplies were furnished, the fact that they were so furnished, with his knowledge and consent and under his superintendence, is sufficient to charge the barque with the usual maritime lien, notwithstanding that Leach may have ordered or directed them. Stewart v. Hall, 2 Dow, 32; Voorhees v. Steamer Eureka, 14 Missouri Rep., 56. 3. That the owns of showing a waiver of the customary maritime lien, by giving credit to Leach, rests on the appellants, and they must not only show that such credit was given, but that it was exclusive, and with the intent to forego all recourse in rem. It will be argued that there is not only an entire failure of proof to that effect on the part of the appellants, but that the circumstances of the transaction, the mode of making the charges, and the certificates required from Leach, to the validity of the accounts against the “barque and owners,” all establish affirmatively that the credit of the vessel was especially looked to, and the usual remedy against her particularly reserved. Ex parte Bland, 2 Rose, 92; Stewart v. Hall, 2 Dow, 29, 37, 38; The Barque Chusan, 2 Story, 468; Peyroux v. Howard, 7 Peters, 344; The Brig Nestor, 1 Sumner, 75; North r. Brig Eagle, Bee, 78. DECEMBER TERM, 1856. 25 Thomas et al. v. Osborn. 4. That even if the relation of Leach to the vessel was not such as necessarily to raise an implication of lien, from his mere contract for repairs and supplies, he had, nevertheless, the right to pledge the vessel expressly. The proof shows that he did this, and the lien, thus expressly imposed, being of a maritime nature, became, proprio vigore, enforceable in admiralty. Alexander v. Grhiselin, 5 Gill, 182; Sullivan v. Tuck, 1 Md. Chan. Rep., 62, 63; The Brig Nestor, 1 Sumner, 78; The Schooner Marion, 1 Story, 73; The Hilarity, 1 Blatchford and Howland, 92, 93; Bogart v. The John Jay, 17 Howard, 401; The Brig Draco, 2 Story, 177, 178. 5. That Captain Leach was introduced to the confidence of Messrs. Loring & Co. by his position as master of the Laura, and derived his credit with them altogether from that position; that they were ignorant of his contract with his owners, and of his violation of it, and the dissatisfaction of the owners therewith; that Leach was held out to the world by the appellants as master of the Laura, with the usual right to bind her by his proper contracts; that Messrs. Loring & Co., by the repairs and supplies in controversy, not only improved the vessel as the property of the owners, but enabled her to earn freights for their benefit; that such was the result of all their dealings with Leach in regard to the barque, which were fair, liberal, and in good faith; that the misconduct and insolvency of Leach, and his failure to pay over the balance of freights, furnish no justification to the owners in repudiating the responsibilities of the barque, especially after their adoption of the very voyage for which the repairs and supplies were furnished, by the act of their agent, Weston, in receiving a part of the proceeds of the cargo, and diminishing to that extent the security of Loring & Co. Mr. Justice CURTIS delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland, sitting in admiralty. A libel was filed in the District Court by the appellee, as assignee of Loring & Co., merchants in Valparaiso, asserting a lien on the barque Laura, of Plymouth, in the State of Massachusetts, for the cost of repairs and supplies furnished to that vessel.at Valparaiso. The District Court decreed for the hen, the Circuit Court affirmed that decree, and the claimants have brought the cause here by appeal. It. appears that in January, 1849, Phineas Leach, who had previously been in command of the barque, contracted with her owners to take her on what is termed “a lay.” There docs not appear to have been any written contract of affreight 26 SUPREME COURT. Thomas et al. v. Osborn. ment between them, nor are the terms of their agreement fully described by any witness. But this mode of employing vessels is so common, and its terms and legal effect so well settled by long usage, it has been so often before the courts and the subject of adjudication, that no embarrassment is felt by us concerning the terms and conditions on which Leach took the vessel. We understand from his testimony, as well as from known usage, ascertained and adjudicated on in the courts, that the master had the entire possession, command, and navigation of the vessel; that he was to employ her in such freighting voyages as he saw fit; that he was to victual and man the vessel at his own expense; that the owners were to keep the vessel in repair; that from the gross earnings were to be deducted all port charges, and the residue was to be divided into two equal parts, one of which was to belong to the owners, the other to the master; and that this agreement could be terminated by the restoration of the vessel to the owners by the master, or by their intervention to displace him, at the end of any voyage, but not while conducting any one which he had undertaken. Having possession and command of the vessel under such a contract, Leach sailed from New Orleans in January, 1849, and after making a voyage to Rio de Janeiro, he sailed for and. arrived at Valparaiso in November, 1849. It is necessary to state with some particularity the voyages made after his arrival at Valparaiso. He sailed thence in December, 1849, with a cargo of Chili produce, on a freight amounting to about $7,000, for San Francisco, where he arrived and delivered the cargo. He went thence to Talcuhana in ballast; and, having an intention to buy a cargo there on his own account, he wrote to Loring & Co., from San Francisco, to obtain from them a credit, on which to raise money to pay for the balance of the cost of this cargo, after appropriating towards it the frieght money in his hands. Loring & Co. granted him a credit for $3,000, to be reimbursed by Leach’s draft on himself at San Francisco, at five per cent, premium. At Talcuhana, Leach drew on Loring & Co. for $7,000, and bought doubloons; but, not being able to procure a cargo there, or at Maule, he sailed to Valparaiso, where he arrived in July, 1850. He handed over to Loring & Co. the doubloons and the proceeds of his freight money, which was in gold dust, and they supplied the vessel and purchased a cargo for Leach’s account, charging a guaranty commission of five per cent, on their advances, and also a commission of two and a half per cent, on their purchases. They rendered Leach DECEMBER TERM, 1856. 27 Thomas el al. v. Osborn. an account, in which, he is charged with the supplies of the barque and the cost of the cargo, and their commissions, and credited with the moneys received from him. Leach carried this cargo to San Francisco; and, having sold it, made an arrangement with the mercantile house of Flint, Peabody, & Co., established at San Francisco, that he would go to Valparaiso, and ship cargoes thence to them on their and his joint account, drawing on them for the cost. This arrangement was not limited to cargoes by the Laura, but was to extend to such other vessels as Leach might take up for the purpose. From San Francisco, Leach sailed in the Laura to Talcuhana, where he saw one of the firm of Loring & Co., who gave him a credit for $10,000 to buy a cargo there. He purchased part of a cargo; but, not being able to complete it, went to Valparaiso, where he arrived in May, 1851. He then informed Loring & Co. of his arrangement with Flint, Peabody, & Co., and they agreed to advance him funds, to enable him to carry the arrangement into effect—to be reimbursed by remittances from San Francisco, with five per cent, commission, and one per eent. a month for interest. He accordingly left the vessel, putting Easton, his mate, in command; and Loring & Co. purchased the residue of the cargo for the Laura, charging its cost to the joint account of Leach, and Flint, Peabody, & Co., and the Laura sailed in May, 1851, for San Francisco. She returned, in ballast to Valparaiso in March, 1852; and at that time the principal bills for repairs and supplies, claimed in this case, were incurred. In March, 1852, the Laura again sailed, under Easton’s command, for San Francisco, via Peyta, where she touched to complete her cargo, and Easton there drew a bill on Loring & Co. to reimburse advances made to him in that port—partly to pay for cargo purchased there, and partly to pay for supplies and port charges. The Laura returned to San Francisco in September, 1852, where she was taken possession of by Captain Weston, who had been sent there by the owners to bring her home. The owners gave no consent to the above-described proceedings of Leach in respect to the use and employment of the barque. at °m time w^ien Leach left the command of the Laura, in May, 1851, he remained in Valparaiso, and by means of funds furnished by Loring & Co., and with their assistance, he purchased and made six shipments of cargoes by vessels other than the Laura, under his arrangement with Flint, Peabody, & Co., and Loring & Co. He had a desk in the countinghouse of Loring & Co., and there transacted his business. betting aside all the special facts of this case, and viewing it 28 SUPREME COURT. Thorftas et al. V. Osborn. only as an ordinary transaction, by which the master of an American vessel procured repairs and supplies, and advances of money to pay for repairs and supplies, in a foreign port, the first question which arises is, whether he had power to hypothecate the vessel as a security for their payment, otherwise than by a bottomry bond, which must make the payment dependent on the arrival of the vessel, and creates no personal liability of the owners. We understand *it to be definitely settled by the cases of Stainbank v. Fleming, 6 Eng. L. and Eq., 412, decided by the Court of Common Pleas in 1851, and Stainbank v. Shephard, 20 Eng. L. and Eq., 547, on writ of error in the Exchequer Chamber, so late as 1853, that by the law of England the master of a ship has not power to create a lien on the vessel as security for the payment for repairs and supplies obtained in a foreign port, save by a bottomry bond; that he can only pledge his own credit and that of his owners, but cannot, by any act of his, give the creditor security on the vessel; while, at the same time, the personal liability of the owners continues. Neither of those learned courts considered—perhaps there was no occasion for them to consider-—(Pope v. Nickerson, 3 Story’s R., 465,) what should be the effect, in an English tribunal, of the law of the place where the repairs and supplies were obtained, if that law tacitly created a lien on the vessel. See Story’s Con. of Laws, § 322 6, 401-’3. These decisions rest merely upon the want of authority in the master, according to the law of England, to create, by his own act, an absolute hypothecation of the vessel as security for a loan. But the*maritime law of the United States is settled otherwise—in harmony with the ancient and general maritime law of the commercial world. The master of a vessel of the United States, being in a foreign port, has power, in a case of necessity, to hypothecate the vessel, and also to bind himself and the owners, personally, for repairs and supplies; and he does so.without any express hypothecation, when, in a case of necessity, he obtains them on the credit of the vessel without a bottomry bond. The ship General Smith, 4 Wheat., 488; Peyroux v. Howard, 7 Peters, 324, 341; The Virgin, 8 Peters, 538; The Nestor, 1 Story, 73; The Chusan, 2 Story, 455; The Phcebe, Ware’s R., 263; Davis v. Child, Daveis’s R., 12, 71; The William and Emeline, 1 Blatch. and How., 66; Davis v. A New Brig, Gilpin’s R., 487; Sarchet v. The Davis, Crabbe’s R., 185. It is not material whether the hypothecation is made directly to the furnishers of repairs and supplies, or to one who lends money on the credit of the vessel, in a case of necessity, to pay such furnishers. “Through all time,” says Valin, “by the DECEMBER TERM, 1856. 29 Thomas et al. v. Osborn. use and custom of the seas, it has been allowable for the master tQ borrow money, on bottomry or otherwise, upon the hull and keel of the vessel, for repairs, provisions, and other necessaries, to enable him to continue the voyage;” Com. on Art. 19, Ord. of 1681; and this assertion rests upon sufficient authority. The Roman law, de exercitoria action^, D. 14, 1, authorized a simple loan, and does not confine the master to borrow on bottomry. The Consulat del Mare, ch. 104, 105, 236, the laws of Wisby, art. 13, the laws of Oleron, art. 1, Le Guidon, ch. v, art. 33; the French ordinance of 1681, art. 19, as well as the present French code de commerce, art. 234, concur in allowing the master to contract a simple loan, in a case of necessity, binding on the vessel. A difference of opinion exists between Valin and Emerigon, concerning the power of the master also to bind the owner to accept bills of exchange for the sum borrowed; but they concur in opinion that the master has power to contract a loan to pay for repairs and supplies, and to give what we term a lien on the ship as security, in a case of necessity. See Valin’s Com., art. 19; Emerigon’s Con. a la Grope, ch. 4, sec. 11; vol. 2, pp. 484, &c. In another place, ch. 12, sec. 4, Emerigon observes, “ It matters little whether one has lent money or furnished materials.” The older as well as the more recent commentators are of the same opinion. Kuricke, 765; Loccenius, lib. 3, ch. 7, n. 6; Stypmannus, 417, n. 107; Boulay Baty Cours de Droit, Com. tit. 1, sec. 2, vol. 1, p, 39, and tit. 4, sec. 14, vol. 1, pp. 151-3; Pardessus Droit Com., vol. 3, n. 631, 644, 660; Pardessus Col., yol. 2, p. 225, note. The subject has been elaborately examined *by Judge Ware, in Davis v. Child, Daveis’s R., 75, and we are satisfied he arrived at the correct result. Nor do we think the fact that the master was charterer and owner pro hac vice necessarily deprived him of this power. It is true it does not exist in a place where the owner is present. (The St. Jago de Cuba, 9 Wheat., 409.) But this doctrine cannot be safely extended to the case of an owner pro hac vice in command of the vessel. Practically this special ownership leaves the enterprise subject to the same necessities as if the master were master merely, and not charterer, and the maritime law gives him the same power to borrow to meet that necessity, as if he were not charterer. The Consulat de la Mer, ch. 289, (2 Par. Col., 337,) has provided for the very case, for it makes the interest of the general owner responsible for the contracts of the master who has received the vessel “en commando;” and one species of this contract was what we should term “a lay”—that is, a participation in profits. Vide SUPREME COURT. Thomas et al. v. Osborn. 2 Par. Col., 186, note 3; 52, note 1; 49, note 4; and the chapters there referred to. It is true the master cannot hind the general owners personally for supplies which he, as charterer, was to furnish. (Webb v. Pierce, 1 Curtis, 110.) Neither could he bind them beyond the value of their shares in the vessel, under the ancient maritime law. (Consulat, ch. 34, 239, and Pardessus’s note, vol. 2, p. 225.) Emerigon is of opinion that the effect of the French ordinance is the same. (Con. a la Grope, ch. 4, sec. 11.) In our law, if the master is the agent of the owners, his contracts are obligatory on them personally. When he acts on his own account, he does not create any obligation on them. But it does not follow that he may not bind the vessel. In Hickox v. Buckingham, 18 How., it was held that contracts of affreightment entered into by the master, within the scope of his apparent authority as master, bind the vessel to the merchandise for the performance of such contracts, wholly irrespective of the ownership of the vessel; and whether the master be the agent of the general or special owner—and this upon the principle that the general owner must be presumed to consent, when he lets the vessel, that the master may make such contracts, which operate as a tacit hypothecation of the vessel. And so in this case, we think, the general owners must be taken to have consented that, if a case of necessity should arise in the course of any voyages which the master was carrying on for the joint benefit of themselves and himself, he might obtain, on the credit of the vessel, such supplies and repairs as should be needful to enable him to continue the joint adventure. This presumption of consent by the general owner is entertained by the law from the actual circumstances of the case, and from considerations of the convenience and necessities of the commercial world. But the limitation of the authority of the master to cases of necessity^ not only of repairs and supplies, but of credit to obtain them, and the requirement that the lender or furnisher should see to it, that apparently such a case of necessity exists, are as ancient and well established as the authority itself. In some of the old sea laws, they are declared in express terms, as they were in the Roman law: Aliquam diligentiam in ea re creditorem debere praestare, D. 14, 1, 7; navis in ea causa fuisset ut refici deberet, I). 14, 1,7. And in the Consulat del Mare, ch. 107, “But the merchant should assure himself that what he lends is destined for the use of the ship, and that it is necessary for that object.” A reference to the other codes cited above will show that a case of necessity was uniformly required; and the commenta DECEMBER TERM, 1856. 31 Thomas et al. v. Osborn. tors all agree, that if one lend money to a master, knowing he has not need to borrow, he does not act in good faith, and the loan does not oblige the owner. Valin, art. 19; Emerigon, Con. A la Grope, ch. 4, sec. 8; and the older commentators cited by him. Boulay Paty Cours de Droit Com., tit. I, sec. 2, tit. IV, sec.-14; and see the authorities cited by him in note 1, p. 153. To constitute a case of apparent necessity, not only must the repairs and supplies be needful, but it must be apparently necessary for the master to have a credit, to procure them. If the master has funds of his own, which he ought to apply to purchase the supplies which he is bound by the contract of hiring to furnish himself, and if he has funds of the owners, which he ought to apply to pay for the repairs, then no case of actual necessity to have a credit exists. And if the lender knows these facts, or has the means, by the use of due diligence, to ascertain them, then no case of apparent necessity exists to have a credit; and the act of the master in procuring a credit does not bind the interest of the general owners in the vessel. We now come to the application of these principles to the case at bar. The freight-money earned by the Laura was applicable, and ought to have been applied, by the master, to the necessities of the vessel; the one-half, (after deducting port charges,) which belonged to himself, should have been applied to pay the wages of the crew, and obtain supplies for the vessel; the other half, which belonged to the owners, to paying for necessary repairs. The amount of this freight-money actually earned and received was about $12,000. Besides this, the Laura had made two voyages to San Francisco, with cargoes belonging to Leach and to him, and Flint, Peabody, & Co., before the bills now in question were incurred. We hesitate to declare that a master, who takes a vessel on “a lay,” can use it to carry cargoes of his own. The practical difference to the owners is, that there can be no agreed rates of freight, and no such security on the cargo for its payment, as the marine law ordinarily provides, and as the owners may be reasonably considered to contempt® w^en !et vessel. (Gracie v. Palmer, 8 Wheat., 605.) But this point has not been adjudicated on by the courts, nor does this case furnish any evidence of what the usage is in this particular. Waiving a decision of this question, it is, at all events, clear the vessel earns for the owners a reasonable freight by carrying cargo of the master; and, according to the evidence in this case, that reasonable freight must have been 32 SUPREME COURT. Thomas et al. v. Osborn. set down for each, of the two voyages on which the cargo of the master was carried, at the sum of $7,000, that being the sum earned on the preceding voyage between the same ports, and there being no evidence before us of a change in the price of freights in the intermediate periods; so that when these expenses, now in question, were incurred, the master had received in money, as freight, $12,000, and must be taken to have received, in the enhanced value of his own merchandise, through its carriage to San Francisco, $14,000 more. The amount previously expended by him for repairs and supplies, at Valparaiso, does not appear to have exceeded $3,000. The amount expended at San Francisco does not appear, but there is no reason to suppose it was considerable. In July, 1850, Loring & Co. received from Leach his funds, supplied him with credit, and purchased a cargo for him. In May, 1851, they made themselves parties to an arrangement, under which Leach was to quit the command of the vessel, and become a merchant, resident at Valparaiso. Whether they did or did not know Leach had the vessel on a lay, this was obviously wrong as respected the owners; for though, under a lay, the master is owner pro hac vice, yet there is a personal confidence reposed in him as master, which he cannot delegate to another, except in case of necessity. Before the credit now in question was given by Loring & Co., they not only had notice that Leach had wrongfully deserted the command of the vessel, and had diverted the freight which the vessel had earned and ought to have earned into his business as a merchant, but they had actually assisted him to do so, by receiving freightmoney, and mingling it with other funds in their hands, out of which and their own funds they made advances to enable him to pay for cargoes; and they acted as his agents in their purchase and they had, moreover, profited largely by so doing, charging high rates of interest, as well as commissions. It should be added, that the owners have received nothing for their part of the earnings of their vessel, during all these voyages; for though, since his return to this country, Leach has rendered his accounts to the owners, they refused to settle them, as rendered, and Leach testifies he has not the means to pay any balance due to them. In such a state of facts, we are of opinion Loring & Co. had no right to lend Leach money, or furnish him with supplies on the credit of the ship, and cannot be taken to have done so. Our opinion is, that inasmuch as the freight-money earned by the vessel was sufficient to pay for all the needful repairs and supplies, and might have been commanded for that use. if they had not been wrongfully diverted, no case of actual DECEMBER TERM, 1856. 33 Thomas et al. v. Osborn. necessity to encumber the vessel existed; and as Loring & Co. not only knew this, but aided Leach to divert the freightmoney to other objects, they obtained no lien on the vessel for their advances. The cause must be remanded, with directions to dismiss the libel with costs. Mr. Chief Justice TANEY, Mr. Justice McLEAN, and Mr. Justice WAYNE, dissented, and Mr. Justice McLEAN and Mr. Justice WAYNE concurred with the Chief Justice in the following dissenting opinion. Mr. Chief Justice TANEY dissenting. I dissent from the judgment of the court in this case, and adhere to the opinion I gave at the circuit. The principal question is, whether certain repairs and supplies furnished to the barque Laura, of Plymouth, in the State of Massachusetts, while she was in the port of Valparaiso, in Chili, in February and March, 1852, are a lien upon the vessel. t The appellants are citizens of Massachusetts, and, at the time of making and furnishing these repairs and supplies, and until and after this libel was filed, were the owners of the barque. She was built for them at Newburyport, under the superintendence of a certain Phineas Leach, who was by profession a mariner. After the vessel was completed, she was placed under his command, as master; and, in the year 1847, he and the appellants agreed that he should sail the vessel on what, in the New England ship-owning States, is familiarly called “a Zay”—that is to say, he was to victual and man her, pay one-half the port charges, and be entitled to one-half of the freights. or earnings. This is the contract, as stated by Leach in his testimony. No written contract is produced.. Indeed, contracts of this description, it would seem, are so well known and understood in the States above mentioned, that they are often made orally, and not in writing. And when the owners agree with a mariner that he shall sail the vessel on “a Zay,” both parties understand that the mariner is to take the command of her as master, to victual and man her, and pay half the port charges; the owner to keep the-vessel m repair, and the freight and earnings to be equally divided between them. Upon a contract of this kind, the-vessel, during its continuance, is under the exclusive control i master, as respects her voyages and employment. He alone has the right to determine what voyages he will undertake what cargo he will ‘carry—upon what terms—and to- vol. xix. 3 34 SUPREME COURT. Thomas et al. v. Osborn. what ports he will sail in search of freight. His share of the earnings of the vessel are his wages, and he receives no other compensation for his services as master. . Before I proceed tp state the facts out of which this controversy has arisen, it is proper to say that Leach states in his testimony that, in addition to the contract above mentioned, it ..was agreed, between the appellants and himself, that he should have the right to become a part owner of the vessel, to to the amount of one-eighth, whenever he paid for it. But he never paid anything on this account, and never, therefore, had any interest as part owner; and, upon his return to Plymouth, in 1852, as hereinafter mentioned, when his connection with the Laura ceased, this contract was cancelled. It was a written contract; but whether it was a part of his contract to sail the vessel upon 11 a lay,” is not stated in the testimony. As Leach never became part owner, his authority over the vessel was derived altogether from his contract to sail her upon the terms above mentioned. That contract, as stated by him, was indefinite as to its duration. Ho particular time was fixed for its termination, nor the happening of any particular event. And it was during the continuance of this •contract that the voyages were made, and the acts done which have given rise to this controversy. The material facts in the case are derived mainly from the testimony of Leach, who was produced as a witness by the owners, who are the appellants; and it requires a close and careful scrutiny to understand the bearing of different portions of his testimony upon the different points raised jn the argument. The examination itself, under the commission to take testimony, which was executed at Boston, is singularly involved and confused; and the answers, I regret to say, often showing a disposition to prevaricate, and a desire to make the best case the witness could for the owners, and against the libellants. His testimony begins by describing several voyages which he made in the year 1849, which are not material to the matter in issue, until he comes to the one from Rio to Valparaiso. This was his first voyage to the Pacific, and he arrived at Valparaiso in November, 1849, with a cargo consigned to Loring & Co., the libellants. This company was composed of citizens of Massachusetts, domiciled at Valparaiso for the purposes of commerce. In December, 1849, he sailed from Valparaiso to San Francisco, with a cargo on freight ; the freight amounting to about seven thousand dollars. Being unable to procure a cargo on freight at San Francisco, he sailed for Tai- DECEMBER TERM, 1856. 35 Thomas et al. v. Osborn. cahuana in ballast, and, no freight offering at that place, he sailed for Maule in ballast, but was prevented from entering the port by bad weather and a bad bar, and proceeded to Valparaiso. He arrived there early in July, 1850. While there, he obtained advances from Loring & Co., which enabled: him to purchase a cargo for the Laura on his own account, with which he sailed for San Francisco, where he arrived in November, 1850. While he was in San Francisco, he made an arrangement with Flint, Peabody, & Co., of that place, by which, upon his return to Chili, he was to purchase cargoes on joint account, and ship or consign them to that house at San Francisco. He was to purchase cargoes by means of bills drawn on them, and they were to honor his drafts. There was no limit as to the time; but this agreement was conditional, and was to depend upon the ability of Leach to make arrangements in Chili, by which he could raise money on those drafts to purchase the cargoes; and if he succeeded in making those arrangements, he was to remain in Chili to make the purchases. The arrangement was not confined to cargoes by the Laura, but he was to buy and ship according to his judgment. When he left San Francisco, he again proceeded to Talcahu-ana in ballast, where he arrived in February, 1851. He met there Mr. Bowen, one of the firm of Loring & Co., and told him that he wanted another cargo, but had not money to buy it, and Bowen thereupon gave him a letter of credit upon his house at Valparaiso, by which he was authorized to draw on them for ten thousand dollars, payable eight days after sight. Being unable to complete his cargo at Talcahuana, he proceeded to Valparaiso, where he arrived in the month of April or May following, and obtained the balance of his cargo by the aid of further advances from Loring & Co. He then mentioned to them his arrangement with Flint, Peabody, & Co., and asked if Loring & Co. would give him facilities in the way of funds to carry out this arrangement. They agreed to advance the funds, upon an interest account with him, charging five per cent, for advances, and one per cent, a month for interest, and they were to be paid by remittances from San Francisco without drawing bills. Leach acceded to this arrangement, and directed them to charge the cargo then on board the Laura at Valparaiso to the joint account of Flint, Peabody, & Co., and himself, Leach. He then, as he says, put the mate, Reuben S. Easton, in as master,” and sent him •° Francisco, Leach remaining at Valparaiso. This was in May, 1851, and he remained there until March, 1852, carrying on and superintending those transactions. 36 SUPREME COURT. Thomas et al. v. Osborn. During this period, he engaged extensively in mercantile business, shipping cargoes by other vessels, as well as the one by the Laura, and obtaining the means of purchasing them by the arrangements he had made with Loring & Co., as hereinbefore stated; and he had a desk in their counting-house, at Which he transacted his business. The Laura did not return again to Valparaiso until February, 1852. It was then found that she needed repairs and supplies to a large amount to fit her for another voyage; and Leach also wanted funds to purchase another cargo for her. He had at that time, it seems, determined to return to Plymouth ; but before he did so, he wished to despatch the Laura, under the command of Easton, on a voyage to Peyta and Panama, with a cargo purchased on his own account. He had no funds for either purpose. He states that he had but $500, and this, it appears, he needed for his personal expenses; and the repairs were made and the supplies furnished for the vessel by Loring & Co., at his request, to the amount of $2,707.69. Leach states that they were necessary, and made and furnished with economy; that he was himself on board, superintending and directing them; that Easton was also on board assisting him, but had nothing to do with ordering or directing them. He merely executed Leach’s orders. The cargo was likewise purchased and paid for by Loring & Co. for Leach, and at his request. The repairs were made and the supplies furnished in the latter part of February and early part of March, 1852, and the cargo put on board immediately afterwards. The invoice is dated Valparaiso, March 18th, and is headed, “Invoice of sundries purchased and shipped by Loring & Co., on board the barque Laura, for Peyta and Panama, on account and risk of Capt. Phineas Leach, consigned to his order, for sales and returns to Loring f Co."—the aggregate amount being $5,779.81. The vessel sailed, as soon as the cargo was on board, under the command of Easton. And on the 20th of March, two accounts were stated by Loring & Co.; one for the repairs ana supplies to the Laura, and the other their private or personal account against Leach; both of which were signed by Leach on that day, with a written admission that they were correct. The first mentioned of these accounts is headed, “Barque Laura and owners to Loring & Co., Dr.,” and states the particular items of repairs and supplies, amounting, as before, mentioned, in the aggregate, to $2,707.69. This account is the matter now in dispute. The other is headed, “Dr., Capt. P. Leach in account with Loring & Co. to 20th of March, 1852, showing a balance due from Leach of $8,527.69. Among other DECEMBER TERM, 1856. ST Thomas et al. v. Osborn. items, he is charged, in this account, with the amount of the account for repairs and supplies, and this item is charged thus—“ our ac. with barque Laura ”—and he is also charged with the amount of the invoice above mentioned thus—“ our invoice sundries for Laura due April 12, 1852 ”—showing that the charge for the repairs and supplies was always kept separate and distinct from Leach’s personal account. On the day these two separate accounts were adjusted and signed by the parties, or in a day or two afterwards, Leach left Valparaiso for Panama, and from thence proceeded home. He states that he arrived at Boston on the 20th of April following, and it appears, by the documents in evidence, that, on the 9th of July next after his return, the appellants agreed with Francis H. Weston that he should proceed to Panama, or wherever the vessel was lying, and assume the command of her as master; and, after fulfilling any engagement she might be under, should proceed with her for a load of guano on freight, or any other freight that could be obtained, to an Atlantic port. Weston proceeded accordingly, and arrived at Valparaiso in September. The Laura arrived there about a fortnight afterwards, when he assumed the command, and Easton left her. In the execution of his orders from the owners, Weston proceeded on the voyage directed by them, and then brought the vessel and cargo to Baltimore, where he arrived in June, 1853; and immediately after his arrival sh,e was arrested upon the libel now under consideration. This narrative of the facts in the case is necessary in order to. understand how the questions discussed at the bar have arisen. There are other circumstances in evidence, relating to different points, which it will be material to advert to more particularly hereafter. As I have already said, the principal matter in dispute is, whether the repairs and supplies furnished to the barque in the port of Valparaiso, as hereinbefore mentioned, in February and March, 1852, were a lien upon the vessel at the time this libel was filed. . In deciding this question, the first point to be considered is, m what relation did Leach stand to the vessel, while he was sailing her under this contract? Was he the owner for the time ? And in determining the legal effect and operation of contracts made by him, are they to be regarded as the contracts m • °.wner> or contracts of the master ? . This is a question of the highest importance to the commer-Ci 1ln^erGs^s country. It is well known that almost the Whole of our immense coasting trade is carried on by vessels owned in the Kortheastem States of the Union; and the far 38 SUPREME COURT. Thomas et al. v. Osborn. greater part of them are sailing under contracts like this. And upon our coast, stormy and dangerous as it is at certain seasons of the year, very serious damage is often sustained by these vessels, and heavy amounts frequently required and obtained in the ports of other States for repairs and supplies to enable them to proceed on their voyages. How, if Leach is to be regarded as owner for the time when he was sailing the Laura under the agreement, then by the maritime law the repairs and supplies furnished at his request are presumed to have been furnished upon his personal credit, unless the contrary appears; and in that view of the subject, Loring & Co. have not, and never had, any lien upon the vessel; and the libel against her cannot be maintained. But if, on the contrary, Leach is to be regarded as master, and as making the contract by virtue of his authority over the barque in that character, then these repairs and supplies in a foreign port, if necessary to enable the vessel to proceed,.are presumed to have been made on the credit of the vessel, unless the contrary appears, as well as on the cdedit of the owners and Leach; and in this aspect of the case, Loring & Co. had a lien upon her, which they may enforce in this proceeding unless it has been waived or discharged. These are the established principles of maritime law in this country, as heretofore recognised and administered in the courts of the United States. And I do not deem it necessary to refer to English cases, or to the decrees or doctrines in the different nations on the continent of Europe, which have been cited in the argument, because I consider the rule, as I have stated it, to be conclusively settled in this country by an unbroken series of decisions in this court and at the'circuits. The case of The General Smith, (4 "Wheat., 443;) The St. Jago de'Cuba, (9 Wheat., 416 ;) and the case of Ramsey v. Allegre, ^(12 Wheat., 611,) explained and commented on in the case of Andrews v. Wall and others, (3 How., 573,) may be regarded as the leading cases on this subject. The case before us is one of the more interest, because it is the first in which the construction and legal effect of . these contracts for sailing on a “ lay ” has come up for decision in this court. They are, as I have said, peculiar to a particular portion of the Union, and are scarcely ever to be found in the maritime contracts of any other part of the commercial world. They are also comparatively modern in their use. And if it is held, that a person furnishing necessary repairs and supplies in a foreign port, to a vessel sailing under a contract of this kind, has not a remedy against the owner, and also a lien on the vessel for such provisions and supplies, as well as for repairs DECEMBER TERM, 1856. 39 Thomas et ak v. Osborn. to the vessel—although they are both furnished at the request of a master who is without funds, and has no other means of obtaining them—then this class of cases will form an exception to the general maritime code of the United States, to which vessels belonging to the ports of other States, and sailing under the usual contract with the master, for certain wages, are subjected ; and the parties making the repairs or furnishing the supplies will be deprived of the securities to which they have heretofore supposed themselves entitled, and upon which they have mainly relied; for the personal responsibility of the master, after he is suffered to leave the port, is most commonly of very little value. And it Would exempt the ship-owners, in one portion of the United States, from the liabilities and burdens imposed upon those of other States, merely upon the ground that in the one the owner compensates his captain by allowing him a share of the nett amount of the freight earned by the vessel, and in the other by fixed and certain wages. For this, in truth, is the only difference between vessels sailing under a “lay” and those sailing under the usual and customary contract between the owner and master. In making, the inquiry whether Leach was owner while sailing under this contract, we shall find few if any eases in the English decisions to assist us. For contracts of this kind, as I have already Said, are hardly if ever used there. And I can find no case where the question arose as to who was owner for voyage in which the contract is not clearly distinguishable from the one before us. And in all of the cases in which it has been held that the general owners were not responsible, it will be found that, by the terms of the contract, the entire and exclusive possession and control of the vessel was transferred for a certain time, or a particular voyage or voyages, and where the general owner, during the time stipulated, had no right to exercise any act of ownership over her. In other words, they are cases in which the court held, that the vessel was let or demised to the party for the time, so as to vest the right of property in the charterer, leaving in the general owners a reversionary interest, subject, to the particular interest so let or demised. And whether this is the case or not, and whether ere is a special and exclusive property in the charterer, does not depend upon any particular form of words or any particular acts, Ihe general rule in relation to the construction of such contracts is laid down in Abb. on Ship., 61, (7th Am. Ed’n,) in je. following words, as the result of the various decisions to w icn he refers: “ From these cases (he says) it appears that whether or not the possession of a vessel passes o the owner or charterer depends upon no single fact or 40 SUPREME COURT. Thomas et al. v. Osborn. expression, but upon the whole of the language of the contract, as applicable to its attendant circumstances.” But although we find no case in the English reports that can be regarded as in point, contracts like the one before us, and indeed in the same words, have, on several occasions, been brought before the Circuit Court of the United States in the first circuit, where they have been carefully and deliberately considered by the learned judge who recently presided in that circuit. And it has been uniformly held in that court, by Mr. Justice Story, that the master sailing a vessel under such a contract as this is not the exclusive owner for the voyage; and, if regarded as owner at all, is a qualified and limited one; and his character and authority, and duty as master, is not merged in it; and that his contracts for repairs and supplies in a foreign port are made in that character, and are a lien upon the vessel. One of these contracts came before him in the case of the Nestor, reported in 1 Sum., 73, and was decided in 1831. The claim was for a cable furnished to the vessel at Alexandria, in the District of Columbia, at the request of the master. The vessel belonged to Portland, in the State of Maine. And the court held that the vessel was liable, unless it was shown that the credit was exclusively given to the master. It is true that the article furnished in that case was for the use of the brig, which the owner was bound to keep in repair. But the principle decided applies directly to the case before us—that is, that the master, under one of these contracts, is not owner for the voyage, so far as to exclude his character and authority as captain. And that his contracts for repairs and supplies are presumed to be made in the latter character, and to create the usual maritime lien upon the vessel, and the usual liability of the owner, unless the presumption is repelled by proof that the credit was given to him. The whole subject is fully discussed in this case, and such will be found upon a careful examination the result of the opinion. The case of the Cassius, 2 Story’s Rep., 81, was a contract of the same description, between the master and owners; and in that case the rights of the master and the responsibility of the owners for his acts in a foreign port were fully considered; and the decision turned upon the question whether, under one of these contracts, the master was the owner for the time. And the learned judge, speaking of the case of Taggart v. Loring, 16 Mass. R., 336, says: “ That case is distinguishable in its actual circumstances from-the present. The argument in that case does not appear from the statements of the report to have been identical with the present. And if it were, I must say that 1 should have some difficulty in acceding to the authority oi that DECEMBER TERM, 1856. 41 Thomas et al. v. Osborn. case, if it meant to establish that the master had'an exclusive special ownership in the ship for the voyage. I should rather incline to the opinion, that if he had any ownership at all for the voyage, it was in common with the general owners.” The contract in that case, upon which the libel was filed, was executed by him as master, and the court held that it bound the vessel. Indeed, I do not see how, upon any fair interpretation of the terms of these contracts, a different construction could be given to them. There are no words in them which import that it is the intention of the owners to transfer the exclusive right of property in the vessel to the master for the time, nor anything in the character of the contract from which it can be implied— on the contrary, the right of possession remains necessarily in the owners. For they are. to keep the ship in repair, and the master is only to man and victual her. The owners have therefore the right, while the contract continues, to take exclusive possession of her, from time to time, for the purpose of putting her in proper repair, and to have her properly equipped, so that she may always be seaworthy, and their property not be imprudently exposed to danger. And whatever Leach did, or was authorized to do, in this respect, was necessarily done as master, holding the possession for the time the repairs were making, not as owner of the vessel, but as agent for the owners, by virtue of his authority as master. And the owners, in a case like this, may, as in the case of an ordinary captain upon certain wages, displace him from the command whenever they think proper—being.bound, however, in like manner, to fulfil the engagements into which he had lawfully entered. Moreover, he had no connection with the vessel, except under nis contract to sail her in the character of captain or master. He had no authority over her, nor any right of possession, nor any power to direct her voyages or movements, exceptin this character. All of his rights were inseparably connected with his official relation to the vessel, and depended upon it. The inducement to the contract was the confidence which the owners reposed in his seamanship, integrity, and capacity for business. Lt was a personal trust, which he could not delegate or assign to another. It was to be executed by himself; and the moment he ceased to be master, all right of possession, and all right to control her voyages. and movements, ceased also. And if his right to the possession of the barque, and to man and victual her, and contract for freights, and to receive half her earnings, were all inseparably connected with his official relation to the vessel as master, and dependent upon it, I cannot understand 42 SUPREME COURT. Thomas et al. v. Osborn. how his'contract for repairs and supplies can be said to be made in any other character. His relation to the vessel, and his rights in and over her, differ in no material respect, in a contract of this kind, from that of a master sailing in the ordinary mode, upon fixed and certain wages, from one port to another, under the direction of the owner, to carry or seek for freight. The only difference is, that a larger discretion as to the voyages to be undertaken is given to the master, and he receives half the earnings, instead of certain and fixed wages. And I cannot perceive how these two circumstances can give him any ownership of the vessel, or why the master’s contracts for repairs and supplies in a foreign port shall be a lien upon the vessel in one case, and not in the other. The fact that he is to victual and man the vessel cannot of itself give a right of property in her. It is, undoubtedly, a circumstance to be considered in expounding these contracts, but nothing more. For the exclusive right for the voyage may as well and legally be transferred where the owners man and victual her, as where it is done by the charterer, provided the contract taken altogether shows that such was the intention of the parties. It does not, as I have already shown, depend upon any particular fact, but upon the entire agreement. And I can see nothing in agreements of this kind, as was said by Mr. Justice Story in the case of the Cassius, which indicates an intention to make the master the exclusive owner during the voyages he might make, or that would justify the court in giving jt such a construction. I am aware, that in some or all of the States where these contracts are usually made, there are cases in the State courts in which it has been held, that in these coiltracts the master is the owner, and that his contracts made in the port of another State are made in the character of owner and not of master, and that an action cannot be maintained upon them against the general owners. I shall not stop to examine these cases, because the question here is not whether an action can be maintained against the owners for these repairs and supplies, but whether they were a lien upon the barque. I admit that I can perceive no distinction in principle between the personal liability of the general owners and the liability of the vessel. For whatever may be the rights and liabilities of the master and owners, as between themselves, upon their private contract, they cannot affect the rights of third parties dealing with him in his character of master, and furnishing necessary repairs and supplies in a foreign port at his request. They know him only as master, and deal with him in that character. And it is the rule of the DECEMBER TERM, 1856. 43 Thomas et al. v. Osborn. maritime law, as settled in my judgment by the decisions in the courts of this country, that in a case of that kind the owners personally, as well as the vessel, are liable for the amount. But if the owner is present, and they are furnished to him, it is equally well established, that the credit is presumed to have been given to him personally, and no lien on the vessel is implied. The decisions in the State courts cannot therefore, it would seem, be reconciled to the decisions of the Circuit Court of the United States, hereinbefore referred to. But however this may be, the implied lien on the vessel in cases like the one before us has been maintained in the Circuit Court. And as the question of maritime lien, with which we are now dealing, belongs peculiarly to the admiralty courts, and the paramount jurisdiction in such cases is vested in them by the Constitution of the United States, it necessarily follows, that it must rest with them to interpret the contract, and to determine whether it created a lien or not, and how, and when, and against whom, it can be enforced. In the case of the,barque Chusan, 2 Story’s Rep., 462, he says: « The Constitution of the United States has declared that the judicial power of the National Government shall extend to all cases of admiralty and maritime jurisdiction; and it is not competent for the States, by local legislation, to enlarge or limit or narrow it. In the exercise of this admiralty and maritime jurisdiction, the courts of the United States are exclusively governed by the legislation of Congress, and in the absence thereof by the general principles of maritime law. The States have no right to prescribe the rules by which the courts of the United States shall act, nor the jurisprudence which they shall administer.” The opinions of the State tribunals to which I have referred are certainly entitled to very high respect, upon any question of law that may come before them; yet the question before us is not one of State law. It is a contract for maritime service, and belongs to the admiralty courts of the United States. And the State decisions, therefore, however highly we respect them, °uny them no binding judicial authority, when in Conflict with die decisions of the courts of the United States upon questions belonging to the Federal courts. And I the more firmly + +^e-k° <^octrines of the Circuit Court, hereinbefore stated, because, as I have already said, I can see nothing in the terms of the contract, or in its character and objects, that would justify a different construction. In my opinion, therefore, Jueach had no ownership in the Laura, and in the contract in question exercised the powers of master, and nothing more. buch being, in my judgment, the meaning and legal effect 44 SUPREME COURT. Thomas al. v. Osborn. of the contract between* the owners and Leach, the next question to be considered is, was he still master when these repairs and supplies were furnished ? The appellants contend, that if he was not owner, but only master, while he was sailing the barque, he yet ceased to be master when he remained at Valparaiso, and placed the vessel under the command of Easton, and that from that time Easton was the master; and the contract of Leach for repairs and supplies would therefore create no lien. Undoubtedly, the conduct of Leach in this respect was a violation of his duty to the owners, if he acted without their consent. He was to sail the vessel himself, and this personal trust and confidence could not be transferred by him to another. Such a transfer would be a breach of his contract, and of his duty under it. But that is a question between him and his owners, and they might displace him or not, as they saw proper. The point here is, did his official relation as master cease when he engaged in commercial pursuits, and remained on shore at Valparaiso ? Certainly, the misconduct of a captain, while on a voyage or in a foreign port, does not, ipso facto, deprive him of his office. It would be a sufficient reason for the owners to dismiss him; but in this case it 'is not pretended that-he was dismissed or suspended by them. Ko other person was appointed to the command until after he had voluntarily surrendered it to the owners, after his return to Massachusetts in the spring of 1852. And these supplies had been furnished, at his request, months before the new master was appointed. Nor did he abandon his official, relation to the vessel while he remained at Valparaiso; but, on the contrary, continued to hold possession in person or by his agent, and to exercise the rights and authority of master, according to the terms of his contract with the owners. He continued to man and victual her, direct her voyages, and receive the freights. Easton was paid by him, and not by the owners; he acted under the direction of Leach, as his agent and subordinate, and not under the direction of the owners. He was not even allowed to receive the freight; and when the supplies in question were furnished, Leach was actually on board, in actual command, and Easton acting as his subordinate, under his orders. And as Leach had no ownership whatever in the vessel, all of this must have been done by him as master, and could have been done in no other character; for if he had abandoned that official position, and Easton was master, he had no authority over Easton, nor any more right to interfere with him on the vessel than any other stranger. . . Nor is his absence from the vessel by any means mcompati- DECEMBER TERM, 1856. 45 Thomas et al. v. Osborn. ble with this official relation and authority. It is not necessary for the existence of .such a relation, and the exercise of such an authority, that he should always be on her deck. He may be absent for a longer or shorter time, and at a greater or lesser distance, without forfeiting his authority; and when once appointed master by the owners, he continues master until displaced by them, or he himself surrenders the office. As respects a dismissal by the owners, Mr. Justice Story says, in the case of the Tribune, 3 Sum. Rep., 149, “ Being once master, he must be deemed still to continue to hold that character until some overt act or declaration of the owners displaced him from the station.” And certainly there was no such act or declaration while Leach continued in the counting-house of Loring & Co. And as to Leach himself, it is obvious, from the facts above stated, that he had not resigned or surrendered the command. It is said that Easton was master. By what authority was he master ? He was not agent of the owners; he was not appointed by them, nor authorized by them to exercise any control over the ship. Nor would they have been bound by his contracts if he had made any, nor responsible for his acts. There were none of the relations and trusts which exist between owners and master, for they had not confided the ship to him, and were not even responsible for his wages; and if Leach was not master, and authorized to bind the vessel and owners by his contract, the vessel was sailing without one, and without any lawfill authority from those to whom she belonged. It is true, Leach says he appointed him master; but that does not clothe him with the authority which the maritime law annexes to that character, unless Leach had lawful power to appoint him. He might, no doubt, have properly sent him on the voyage, and placed the vessel under his command while he remained on shore, if the interest of the owners required or would justify it. And he might, if he pleased, call him master or captain ; but by whatever name he chose to call him, he would Jie nothing more than his subordinate and agent. He would not, in respect to the owners or third persons, possess the authority of master. i Qo"^e T8?8 k’Arina, i * * * v- The brig Exchange, Bee’s Reports, ±y», and the same v. Manwaring, 199, are directly in point on tins head. There the party was appointed by the master as captain, and cleared the vessel as such at Havana; yet this appointment was held by the court not to give him the legal re a ion of captain to the vessel, nor displace the master ap- i ++ . ,e. owners > an(i was held that the contract of latter, within the scope of his authority as master, was still binding upon the owners. The fact, therefore, that Leach re- 46 SUPREME COURT. Thomas et al. v. Osborn. mained on shore, and sent the vessel upon different voyages under the command of an agent appointed by him, did not of itself displace him; he was still master of the barque, with all the powers and responsibilities which are attached to that character. And if the fact that he remained on shore did not deprive him of his official character, the circumstance that he was engaged during that time in commercial pursuits cannot alter the case. It cannot make any difference, in this respect, whether he remained idle or employed himself in any particular pursuit; But it is said that Leach was not only absent from the barque, but he was employing her in violation of the orders of the owners, who disapproved of his conduct, and had directed him to bring the vessel home, and that Loring & Co. knew it, and yet encouraged and enabled him to go on in the violation of his duty, by large advances of money. And it is insisted, that as Loring & Co. were aiding and encouraging him in this breach of duty, and the supplies in question were furnished to enable him to persevere in it, they were furnished in bad faith to the owners; and in a court of admiralty, acting upon equitable principles, can create no obligation upon them, nor any lien upon their vessel. If the facts assumed were established by the testimony, I should not dispute the law as above stated. But I think the fact that the owners disapproved of his remaining on shore, and engaging in mercantile pursuits, is not only not established, but, on the contrary, the weight of the testimony is on the other side, and, notwithstanding the evasive and ambiguous answers of Leach, tends strongly to prove that his conduct in this respect met their approbation. In examining the testimony in relation to this question of fact, it is necessary, in order to see the force to which it is entitled, to state it more minutely than I have done in the preceding part of this opinion, and to note particularly the dates • as given by the witness. The disapproval of the appellants is brought out by the following question, put by the appellants, the owners: “Was your remaining in the Pacific and trading with,the Laura done with the consent and approval of the owners?” To this question Leach simply answers, “Ah, sir” Upon the cross-examination upon behalf of the libellants, the following interrogatories were put to him, to which he gave the following answers: _ Question, “when was their (the owners) dissent made known to you?” DECEMBER TERM, 1856. 47 Thomas et al. V. Osborn, Answer. “I think it was the second time I was at Valparaiso, which, I think, was in the latter part of 1849.” Question. “At what period did the owners take efficient steps to displace you?—at any period before Captain Weston was sent out?” Answer. “ They did not take any efficient steps, any further than to request me to come home.” These answers constitute the entire proof of disapproval and dissent of the owners, of which so much has been said in the argument, and which has been so confidently assumed as a fact proved. It will be observed that the question put by the owners does not point, and clearly was not intended to point, to any disapproval on their part of his remaining on shore, or engaging in trade at Valparaiso. It relates altogether to the employment of the barque in the Pacific, instead of the Atlantic. In fact, it could not have related to his remaining on shore, or engaging in trade, because the notice of disapproval appears to have been given but once, and was given and received while Leach was still sailing the vessel under the “lay” and seeking and carrying freights, and before he had purchased a single cargo for himself, or absented himself from her for a single voyage. It was never repeated, although he remained nearly two years afterwards, engaged in commerce, and on shore in the counting-house of the libellants nearly half the time. The fact is clearly established by Leach’s answers to the cross-interrogatories above given. It will be observed that in these answers he says he thinks their disapprobation was made known to him the second time he was at Valparaiso, yvhich he thinks was in the latter part of 1849. Kow, in the preceding part of his examination he had stated positively that he arrived at Valparaiso from Rio with a cargo on freight, consigned to Loring & Co., in Kovember, 1849, and arrived there the second time in July, 1850. Without stopping to comment upon the hesitating language, and the vagueness and uncertainty of this answer in relation to a fact which it is obvious, from the preceding part of his testimony, was perfectly in his recollection, +l1S say> that, give him either date, it is evident that the disapproval of the owners had no connection with his mercantile pursuits, and pointed merely to the employment of the Laura in freighting voyages on the Pacific, instead of the Atlantic; for if the notice was received by him in 1849, it was before he had engaged in that coasting trade, and must have been written by the ownerg in consequence of information given them by Leach from Rio, concerning the freight he had obtained there for Valparaiso, and of his intention to seek 48 SUPREME COURT. Thomas et al. V. Osborn. freights on that coast; for this was his first voyage in the Laura to the Pacific. He had not then engaged in the coasting trade on that ocean, and had done nothing in that respect for the owners to disapprove of. And if he did receive the notice, as he says, in 1849, upon his arrival at Valparaiso, it must have been a disapproval of what he informed them he proposed to do; not of what he was doing or had done. Certainly it had no relation to his trading on his own account, for there is not the slightest evidence that he had any such design at that time, nor for nearly a year afterwards. And if we take the other date, the argument is equally strong; for, if he received it on that occasion, it must have been written some time-before. And it was on his second visit to Valparaiso, in July, 1850, that he for the first time engaged in mercantile pursuits on his own account, and obtained advances for that purpose from Loring & Co. If the notice reached him at that time, and before he commenced his commercial speculations, the dissent must have applied to the place at which he had been seeking freights, and not to his private speculations. Indeed, taking this as the date' of the receipt of the notice, the inference is almost irresistible, that the owners must have been apprised of his intention to purchase cargoes on his own account, and approved of it; for he had been engaged, when he received this notice, in seeking freights in the Pacific for about nine months. He had not, it appears, been successful; and after his first cargo from Valparaiso to San Francisco, he sailed most commonly from port to port in ballast, or with very inconsiderable cargoes; and as Leach was in constant correspondence with the owners, they were of course apprised of his want of success, and would very naturally disapprove of his remaining in the Pacific, where the earnings of the vessel would give them very little for their share of the freights. But this notice, as I have said, does not appear to have been repeated. Leach does not pretend that any complaints of his conduct were subsequently made by the owners; and the natural inference is, that having confidence in Leach’s prudence and judgment, when in reply to this communication they were apprised by him of his determination to purchase cargoes on his own account for the Laura, and thus insure constant employment for her and full freights, they were willing he should remain and carry out his plan. And this conclusion is strengthened by the circumstance that no measures were afterwards taken by the owners to compel or induce him to return, and that he remained without further complaint, engaged in these pursuits until he im-self found them unprofitable, and determined to return home. DECEMBER TERM, 1856. 49 Thomas et al. v. Osborn. He is asked, in one of the interrogatories: “ At what period did the owners take efficient steps to displace you ?—at any period before Captain Weston was sent out?” And he answers: “They did not take any efficient steps, any further than to request me to come home.” And in answer to another interrogatory he says, he did not yield to their .wishes, because he thought he had a right to remain there if he chose. There was no order, therefore; no charge of misconduct; no notice that they would put an end to the contract; nothing more than a request which Leach did not comply with, because he thought that while the owners suffered the contract to continue, he had a right to select the theatre of his operations, and to act upon his own judgment. And undoubtedly he was right in this respect, unless the owners put an end to the contract, which they might have done at any moment, if they supposed him to be no longer acting in the line of his duty. But whatever might have been their opinion as to the soundness of his judgment in selecting the Pacific instead of the Atlantic for the employment of the vessel, when they requested him to return, they undoubtedly acquiesced in his opinion when they received his answer declining to return, and continued for nearly two. years, afterwards to sanction his conduct, by suffering him to remain there, receiving remittances from him, and paying his. drafts,, and settling his account, without making the slightest objection to allow him one-half the freights, according to the contract, for his services as master. And the charge of taking the vessel to the Pacific, and illegally detaining her there for1 his own benefit and advantage, was never heard of until payment for the repairs and supplies furnished to their barque wa& made by the libellants. And if such a defence had been found-ed in fact, it would have been easy for the owners to prove it conclusively by producing the correspondence between them and Leach. But no part of it has been offered in evidence, ihe fair inference from the testimony therefore is, that they assented to. his proceedings, and approved of his remaining, atter receiving his answer to the request for his return. But if the case were otherwise in this particular, and it haff een proved that Leach illegally and against their orders de-med the Laura in the Pacific, I do not see how that would a ect. the claim of. the libellants, unless in furnishing those s^PPhcs knowingly aided and abetted him in his breach o uuty to the owners.. The argument is, that they did know- y aid and abet him. But it would be a sufficient answer' o it to say, that no such charge is made against them in the nswer. It is made against Leach; but there is not the slight-s intimation that Loring & Co. had any knowledge of it. vol. xix. 4 & 50 SUPREME COURT. Thomas et al. v. Osborn. And as this defence is not taken in the answer, it cannot he relied on here, even if there was evidence in the record which would justify it. But there is not the slightest evidence to prove it. On the contrary, it appears by Leach’s testimony, that when he arrived at Valparaiso, with the cargo consigned to Loring & Co., he told them upon what terms he was sailing the vessel, and the deep interest he had in her earnings; and thinks it probable he mentioned the contingent right he had of purchasing oneeighth of the vessel, if he could raise the money to pay for it. The fact that he had been trusted with so much power over such a vessel as the Laura, and would even be received as a partner if he could raise the money, naturally induced Loring & Co. to think him worthy of confidence. And they appear to have aided him in procuring freights, while he confined himself to that business. They evidently had no knowledge of any dissatisfaction on the part of the owners, for Leach states positively that nobody but himself knew of it. And when, therefore, he proposed to purchase cargoes on his own account, which would give the Laura constant employment and full freights, they could have had no reason to suppose that his 'Owners disapproved of it. And when these supplies were furnished, they had strong grounds for believing that his conduct in this respect was known to the owners, and met their approbation; for they had then seen him for nearly two years engaged in this business, during all that time in correspond-•ence with his owners, and occasionally making remittances to them, and drawing bills on them, (as Leach himself states,) which appear to have been duly honored, and without the slightest token of disapproval, as far as Loring & Co. had an •opportunity of seeing. There was nothing to create suspicion or put them on inquiry. The advances made to him were made in the regular course of their business, and at the usual rates for interest and commission in that quarter of the world; and they had every reason to believe that they were promoting the objects and advancing the interests of the owners, as the advances made to Leach enabled him to keep the Laura constantly employed with full cargoes, thereby earning large freights, of which the owners were entitled to the one-half. Loring & Co. had no knowledge of the state of his accounts with the owners; and no reason even for suspecting that he did not remit to them their share of the freights, or that he improperly used or withheld it. , The case then upon the points already examined may he summed up as follows: . p 1st. At the time these repairs were made and supplies rar- DECEMBER TERM, 1856. 51 Thomas et al. v. Osborn. nished, Leach was in full possession of the barque, exercising his authority as master, under his contract with the owners hereinbefore stated. 2d. He was recognised and paid as such by the owners. 3d. He was dealt with as such by Loring & Co., in good faith, without the slightest grounds for suspecting that the owners disapproved of his conduct, or had requested him to bring the vessel home. 4th. The repairs and supplies were necessary to enable her to go to sea, and she must have remained idle in the port if they had not been furnished; and they were made and furnished with prudence and economy, under Leach’s own direction. 5th. He had no money except the five hundred dollars hereinbefore mentioned, which he needed for his personal expenses, and had no funds either of his own or the owners within his reach, with which he could make these repairs or obtain the necessary supplies. These facts appear to me to be conclusively established by Leach’s own testimony. And as it is admitted, on all hands, that the repairs were made and the supplies furnished at his request and by his order, it follows, from the decisions in this court, and at the circuits to which I have already referred, that, by the maritime code of the United States, Loring & Co. obtained an implied lien on the vessel for the amount, unless it can be shown that they were furnished on the personal credit of Leach or some other person. An attempt has been made to offer such proof, and to show that the supplies were furnished upon the personal credit of Leach. But it is an obvious failure. He is asked by them whether the repairs and supplies were furnished upon his responsibility ? or the credit of the vessel ? or how otherwise ? He answers, “I presume they were furnished on my responsibility.” And this is the whole and only evidence offered by the appellants to show that they were furnished on the personal credit of Leach, and not on that of the vessel or owners, Certainly, such evidence can hardly be sufficient to remove the implied lien given by law. "Whether the credit was given to him was a question of fact. If the fact was so, he must have known it, and could have sworn to it in direct terms. But instead of this, he merely expresses an opinion in general । ^erms, and gives no reason for that opinion, and states no fact *roin which it might be inferred that this opinion was well founded. The answer is, in truth, no evidence; it is but the opinion or conjecture of the witness; and, even if there was no evidence in the record to contradict it, would leave the case upon the implied lien which the law creates. • k iS dire.ctly conflict with the written instruments signed by the witness himself at the time of the transaction. 52 SUPREME COURT. Thomas et al. n. Osborn' The account for those repairs and supplies is headed, as I have already said, “Barque Laura and owners, to Loring $ Co., Dr.” It is signed by Leach, and admitted by him, in writing, to be correct. He of course read the account, and was undoubtedly a man of sufficient intelligence to understand the meaning of words. And how could the barque and owners be debtors for those supplies, if they were furnished exclusively on the credit of Leach ? How could they be debtors to Loring fc Co., unless they were furnished on their credit ? It is true* Leach says he signed the account only for the purpose of verifying the items. But this is evidently an afterthought; for he admits, by his signature, not only the correctness of the items, but kthe account itself—that is, the charge against the barque and owners, as well as the things charged. Besides, if his signature was intended merely to verify the items, there was no necessity for this account. The items ought to have been inserted in the other account, signed by him at the same time, which contains the charges for which he was personally liable; and his admission of that account would have been quite sufficient to verify these items. And the fact that two accounts were stated, and signed and admitted by him on the same day, the one charging the repairs and supplies to the barque and owners, and the other charging him, as “Captain Phineas Leach,” for other articles properly chargeable to himself, shows that both parties understood what they were about; and, to avoid future cavil, stated their accounts against the respective debtors, according to their mutual understanding at the time. And the insertion of the aggregate amount for repairs and supplies, in the account against Leach, coupled with the account against the barque and owners, proves conclusively that the parties intended to make no special contract with Leach for those repairs and supplies, nor to take any special hypothecation, or bottomry on the vessel, but dealt with one another upon the established rules of maritime law, which, in the absence of any special contract, made the barque and owners, and Leach himself, responsible for the amount. . In order to give some color to his statement, that he presumes they were furnished on his credit, he says that his credit was at that time good. If he had shown that it was in feet good, it would be no reason for presuming that Loring & Co. relied upon it, and waived the other securities to which fhey were entitled. But the record shows that it was not good, and that Loring & Co., in the advances they made to him at the same time for the purchase of cargo on his private individual account, did not think it prudent to rely altogether upon DECEMBER TERM, 1856. 53 Thomas et al. v. Osborn. hi a credit. For the heading of the invoice of the cargo purchased upon that occasion, which I have already set forth in full, expressly required that the sales and returns should be made by the consignee to Loring & Co. And Leach admits that the cargo was to be insured, and the loss, if any, to be paid to Loring & Co. And from his own testimony, as well as the invoice, it is evident that it was understood by the parties that the proceeds of the cargo were to be remitted from Panama by the consignees to Loring & Co. For he is asked by the libellants, “Was there not an understanding that the proceeds should be remitted by your consignees to Loring & Co.?” and he answers, “I don’t know that there was.” But he is again pressed by the inquiry, “Will you reflect and see if you cannot answer that question directly that there was?” and he then answers, “There was no such understanding; it might be understood; there was nothing promised.” I give the words of the witness; but I cannot be convinced by this nice casuistry of Captain Leach, in distinguishing an understanding between the parties from a promise, that his credit was still good with Loring & Co., notwithstanding the evidence to the contrary in the agreement in the heading of the invoice, and in the admitted agreement in relation to the insurance. It certainly does not prove it so high as to create a presumption that all other securities were waived, from their confidence in the personal responsibility of Leach; nor did his subsequent conduct show that he merited even the confidence they did repose in him. For he went to Panama and procured 4? *nces himself, on account of the cargo, to the amount, of $2,100, and authorized large disbursements to be made by his consignee to his agent, Easton, for the use of the Laura, and proceeded to Massachusetts without returning to Valpa-after he came home, he drew on his consignees for $375 more to pay Weston’s expenses, who was sent out by the owners, and during all that time rendered no account to Loring & Co., and left them under the impression that the pro-, ceeds would in good time be remitted to them. It seems they' were not aware of the distinction which Leach took between the mutual understanding between them and an actual and formal promise. The point, therefore,, taken by the owners, that the repairs no. supplies were furnished on the personal credit of Leach, cannot, in my judgment, be maintained. And, undoubtedly, e justice of the case is clearly with the libellants. The capon? ^as without funds, and his owners had none in Valparaiso; tne ba 48; The Alival, 25 Eng. Law and ana of 18325 § Statutes at Large’ 306’ sec- 10 ’ Act of L<>uisi- 3d. That if the appellant was at all in fault, and responsible S,i v.i Fee because t^t fault, then the appellees are only entitled to recover one-half of the amount of the damages 58 SUPREME COURT. Ure v. Coffman et al. occasioned by the collision. Brickell v. Frisby, 2 R., 205; Schooner Catherine v. Dickinson, 17 Howard U. S. R., 170. Mr. Benjamin made the following points: The claimants and appellants do not deny that they ran into and sank the flat-boat, whilst she was lying tied up to the bank at night, but they seek to excuse themselves by urging: First. That the flat was lying moored to the bank of the river, at a distance of only fifty feet below a wood-yard, in the way of steamboats taking wood, and in the way of steamboats landing freight or passengers, at the. usual landing of Madame Trudeau, the owner of the plantation on which the wood-yard was situated; and Secondly. That the flat-boat had no light out, and was so concealed by the shadows of the bank that she could not be seen. I. To this first excuse, the short and ready answer is, that the G-ipsey was not engaged in any attempt to land at the wood-yard, or at Mrs. Trudeau’s landing place, when she ran into the flat-boat; but, on the contrary, was bound up the river for a landing at George Mather’s plantation. Yet the night was so dark and foggy, that whilst they thought they were running up the river, they ran directly into the bank, sinking the flat-boat. They pretend that the night was not too dark to run, and that it was quite light enough for them to pursue their voyage with safety. The testimony is somewhat conflicting on this point; but on their own evidence they are in a fatal dilemma. By the evidence of her own officers, the Gipsey would have run directly into the bank of the river, if the flat-boat had not intervened. How, if it was light enough to navigate with safety, the fact proves the grossest carelessness and negligence, sufficient to make the steamer responsible. If, on the contrary, it was not light enough to navigate with safety, there was criminal imprudence in continuing the voyage, instead of lying up till the darkness was dissipated.. The district judge puts the dilemma very clearly m his opinion, and there is no escape from it. H. To the second excuse, the answer is, that there was no obligation on the part of the flat-boat to exhibit a light- She was moored in a nook or recess of the bank where it had caved, so as to leave a point of land jutting out into the river above and below her. Whether near a wood-yard, or not, is a matter or no consequence. She was not at the wood-yard. She was nest e securely, as her owners had every reason to believe, beyon 59 DECEMBER TERM, 1856. Ure v. Coffman et al. possibility of'harm from ascending or descending boats, and she was not harmed by any boat that was ascending or descending by a proper course, but by a boat which, whilst its officers declare they were bound up the river, run straight across it, to a spot where they had no intention of going. A steamboat running at night is bound to have lights, (act July, 1838, 5 Stat, at Large, 306,) and it would no doubt be held imprudent for a flat-boat, under the same circumstances, to neglect the same precaution; but it never has been even pretended, before, that a vessel of any kind, tied to the bank of a river, not in any port or harbor, or usual place of landing, is bound to show a light, still less when, as in the present case, the vessel was lying in a nook or recess of the bank, entirely out of the usual course of ascending or descending vessels. Mr. Justice WAYNE delivered the opinion of the court. This is an appeal from the Circuit Court of the United States for the eastern district of Louisiana. It appears from the record, that the steamer Gipsey was a packet on the Mississippi river, running from New Orleans to Lobdell’s Store landing, above Bayou Sara, and, as all the other Mississippi steam river packets do, was in the habit of landing freight and passengers at all the intermediate points and plantations. She was making a trip up the river from New Orleans on the evening of the 21st December, 1853. The night was rainy and dark, and after midnight somewhat foggy. It was light enough, though, for the boats navigating the nver to run and to distinguish and make all their landings. AH of the witnesses say it was a proper night for running, and none of the packets, or other boats, laid up on that night on account of the weather. Alexander Desarpes, a witness for the claimant, says, “he was the pilot of the Gipsey, and was on watch at the wheel at the time the Gipsey struck the flat-boat. That the collision happened above the point at Trudeau’s wood-yard, about fifty-six miles above New Orleans, between twelve and one o’clock at night, on the 22d December, 1853. was a night, rainy, dark, and smoky, rather than foggy, with a little fog. There was light enough, owever, for the boat to distinguish landings, and she ran and aae all of her’s of freight and passengers as she went up. er last landing before the collision was one of freight, at J. fin J^r^1.an^s plantation, on the right-hand side of the river IvT+v a^ou^ half a mile below Trudeau’s wood-yard. rJn I cros®e(^ the river from there, to go to George Mather’s KonJft10u* time, the night was dark ana rainy, but hore could be seen for some distance. There was a light 60 SUPREME COURT. Ure v. Coffman et al. at Trudeau’s wood-yard on the bank, which is pretty high there, at least fifteen feet above the water; I could see this light a long distance—three or four arpents from the shore; there was a point of land just below the wood-yard; I was looking out when the boat was approaching the shore, for the purpose of going up that shore to make a landing; I could see an outline of the shore, or bank, all along, and distinctly, too; I did not discover the flat-boat until we were right up against her; the flat-boat was lying close to the bank, and in its shadow, and having no light on her I could not see her; she was lying just at the foot of the wood-yard; the light on the bank was a good distance from the flat-boat, and did not shine upon her. As soon as we saw the flat-boat, we stopped the engine of the Gipsey, and backed. If there had been a light on the flat-boat, I could have seen it at a sufficient distance to have avoided the collision, but there Was no light on her. As the flat-boat was low down in the water, if there had been a light on her, we should have known it was something down in the water. I saw nobody on watch on the flat-boat at the time of the collision, and heard no hail from her before it.” The witness further states that he had been a pilot on the river for more than ten years, “running in this lower trade,” and adds, at the time of and before the collision, the weather was such as boats are in the habit of running and making landings, and I, as a pilot, consider that it was safe and proper to run the boat. Mather’s landing, where the Gipsey was going to land, was about a quarter of a mile above Trudeau’s wood-yard. Upon the cross-interrogation of this witness, he does not give an intelligent or certain statement of the collision, or where or how the Gipsey struck the flat-boat; but says she was tied, to a point, and her stern lay a little out from the bank; she laid up and down the river in the same direction with the current; there are curvings in along the bank; the flat was lying at a point fastened, and there are curvings both above and below that point, which was a mere jutting out of the bank in consequence of curvings above and below it. The direct examination being resumed, this witness says, on a clear starlight night, in such a stage of water as prevailed at the time of the acci-dent, we could have seen a flat-boat at a good distance in time to prevent an accident. If there had been on the flat-boat such a light as is generally carried on deck by a steamboat, or a schooner, or on flat-boats when they are running, I could have seen it three or four arpents off, and this would have given m time to avoid the collision. . . The evidence of this witness is not in any. material particular changed by any other witness examined in the case. DECEMBER TERM, 1856. 61 Ure v. Coffman et al. rather confirmed; but the capfain of the Gipsey, who was also sworn as witness, gives a more certain account of the collision, as to the part of the flat-boat which was struck by the steamer, and by what part of the steamer she was struck. The testimony is conclusive, that the flat being tied to the shore, at what might have been considered a proper and safe place, was struck by the steamer with sufficient force to cut a part of her down, and to sink her in a few minutes. There are three points to be noted in the testimony of Desarpes. The first is, that the steamer, being upward bound, had made a landing at A rm ant’s plantation, about half a mile below Trudeau’s wood-yard, and that her next place for making a landing was a quarter of a mile above that, on the opposite side of the river, at Mather’s plantation, making the distance between the two places about three-quarters of a mile. Secondly, that in his opinion as an experienced pilot, and accustomed to the navigation of the river, there was nothing in the state of the weather -to prevent the steamer from being run as usual, and put across the river to make a landing at Mather’s plantation, but that she was run so close in shore as to be brought into collision with the flat-boat, and thereby that the witness admits that the only cause of it was, that the flat-boat was lying close to the bank, and so much in its shadow, and not having a light, he could not see her. His language is, that if there had been on the flahboat such a light as is generally carried on deck by a steamboat or a schooner, or on a flat-boat when they are running, he could have seen it far enough off to have avoided the collision. Captain Ure, then in command of the Gipsey, gives the same account, scarcely with a variance, of the navigation of his vessel from Armant’s plantation until the collision had occurred, but says, with more positiveness than his pilot spoke, that the forward end of the Gipsey—some part of the bow pretty far forward struck the flat-boat. His language is, that he “ Was 011 a 6 8^eamer in front all the time, when they had made their landing at Armant’s, up to the moment of the collision. . From Armant’s we ran the bend of the river on the same side a short distance, and then crossed over to make a ?? Mather’s, above Trudeau’s wood-yard. There was a ignt above the wood-pile, but I saw nothing but its glare e ore the collision, the wood-pile being between the light and y eyes. I could see the glare some three or five minutes here the collision took place. We had almost hit the flat-boat saw I was looking out and saw the boat, seeing its clearly about the same time that I saw the glare is W k It' sP°^®n error brought a qui tarn action against the defendants in error, to recover penalties and forfeitures alleged to have been incurred by them under the act of Congress passed February 3d, 1831, entitled “An act to amend the several acts respecting copyrights;” that at the June term of said court, 1850, the cause was submitted, upon the general issue, to a jury, who, in due form, returned a verdict in favor of the defendants in error, of “not guilty; ” whereupon judgment was entered, that they have and recover their costs of suit. The record discloses no error in law, nor, to the knowledge of the defendants in error or of their counsel, was any error of law brought upon the record by the allowance of a bill of exceptions. • The court has no choice, therefore, but to confirm the judgment below, with costs. Samuel Ames, For Defendants in Error. Mr. Justice McLEAN delivered the opinion of the court. This is a writ of error to the Circuit Court for the district of Rhode Island. An action was brought by the plaintiff in the Circuit Court, alleging that he was the author of a topographical map of the State of Rhode Island and Providence Plantations, surveyed trigonometrically by himself, the copyright of which he secured under the act of Congress of the 3d April, 1831, entitled “ An act to amend the several acts respecting copyrights;” and he avers.a special compliance with all the requisites of said act, to vest in him the copyright of said map or chart. And he charges the. defendants with having published two thousand copies of his map, and sold them within two years before the commencement of the action, in violation of his right, secured as aforesaid, to his damage four thousand dollars. Ihe defendants pleaded not guilty. The case was submitted . 0 aJury, who returned a verdict of not guilty. A judgment was entered against the plaintiff for costs. error was procured, and bond given to prosecute it with effect. & r he defendant proper person assigns for error, “that the' ver ict and judgment were given against the plaintiff in error, fi,oerfa.8 verdict and judgment should have been given for-ground^’’ an<^ ^ra^s a reversal of ^h*3 judgment on this> In a very short argument, the plaintiff in error says, the vol. xix. 5 J 66 SUPREME COURT. Lathrop v. Judson. principal questions are: Was the verdict and judgment correct? Was the sale of the engraved plate, on execution, the sale of the copyright ? Did such sale authorize the defendants, or any other person, to print and sell this literary production, still subsisting under a copyright in the plaintiff. And he refers to 14 Howard, 528, Stevens v. Cady. In that case this court held that a sale of the copperplate for a map, on execution,, does not authorize the purchaser to print the map. Two or three depositions, not certified with the record, were handed to the court as having been omitted by the clerk in making up the record; but it does not appear that they were used in the trial before the Circuit Court; and if it did so appear, no instructions were asked of the court to the jury, to lay the foundation of error. It is to be regretted that the plaintiff in error, in undertaking to manage his own case, has omitted to take the necessary steps to protect his interest. There is no error appearing on the record which can be noticed by this court; the judgment of the Circuit Court is therefore affirmed with costs. C. C. Lathrop, Plaintiff in Error, v. Charles Judson. Where exceptions are. not taken in the progress of the trial in the Circuit Court, and do not appear on the record, there is no ground for the action of this court. This case was brought up, by writ of error, from the Circuit ’Court of the United States for the eastern district of Louisiana. • The suit was commenced by Charles Judson, a citizen of New York, to recover from Lathrop the amount of a judgment rendered by the Supreme Court of Louisiana, in June, 1851, for $1,810, with interest from the 2d of May, 1845. The plaintiff attached to his petition a copy of the record of the judgment. The suit was commenced on 6th May, 1854. On the 18th of May, the defendant filed the following exception and plea: To the Hon. the Judges of the Circuit Court of the United States for the Fifth Circuit and Eastern District of Louisiana: The exception and plea to the jurisdiction of Charles C. Lathrop, of New Orleans, to the petition filed against him in this honorable court, by Charles Judson, of the State of New York. This respondent alleges, that this honorable court has no jurisdiction, of the suit instituted in this matter, the same DECEMBER TERM, 1&56. 67 Lathrop v. Judson. having been litigated and deceden in the courts of the State of Louisiana, and an execution having been issued on the judgment in said suit by the said Charles Judson against this respondent, under which execution a seizure has been made of certain property as belonging to this respondent, and which execution has not yet been returned; all of which will fully appear by reference to the suit Ko. 16,671, of the docket of the late Parish Court of Kew Orleans, transferred to the Third District Court of Kew Orleans, and to the notice of seizure, herewith filed. Wherefore, this respondent prays that his exception may be sustained, and that he may be excused from answering to said petition, and that he may be hence dismissed with his costs. In June, 1854, the court ordered and adjudged that the said exception be dismissed at defendant’s costs. On the same day, Lathrop filed his answer, alleging that on the 11th of February, 1851, he had made a cession of all his property to his creditors, under the insolvent laws of Louisiana; that the plaintiff in the suit was placed on the list of creditors for the amount of the judgment; that the debt for which the judgment was rendered was contracted in Louisiana, and that the plaintiff bought the debt at the sale by the U. 8. Marshal, &c., &c. . To sustain this answer, the defendant produced the record in insolvency. In Kovember, 1854, the cause came on to be heard, and was submitted to the court, when judgment was entered in favor 9^ Judson, against Lathrop, for $1,810.50, with interest from 2d May, 1845, till paid, and costs. Lathrop sued out a writ of error, and brought the case up to this court. r It was argued by Mr. Taylor for the plaintiff in error, and Mr. J3enjamin for the defendant. ^r‘ ^aylor assigned for error the following: 1st.. That the exception and plea to the jurisdiction of the ircuit Court, founded on the fact that there was at the time an execution then in force, upon which a seizure had been And UT1(^er judgment sued on, was improperly overruled. ?^at the decision of the lower court, to the effect that e original cause of indebtedness was not a Louisiana con- ’ uPon , &cts set forth in the decision of the court, is erroneous, and contrary to law. And then made the following points: 68 SUPREME COURT. Lathrop v. Judson. I. Tn Louisiana, only one execution can issue at a time on a judgment; and when a judgment is in the course of execution in .one court, no judgment can be had on the same claim, unless subject to the condition that no execution issue until the result of the proceedings on the execution be ascertained. Hudson v. Dangerfield, 2 L. R., 66; Kewell v. Morton, 3 R., 102; Hennen’s Dig., p. 782, Ko. 9. TT. Contracts are governed by the law of the place where they are entered into, and an obligation contracted or incurred is payable at the domicil or residence of the obligor, in the absence of an express stipulation making it payable elsewhere. Lynch v. Postlethwaite, 7 M. R., 213; Hennen’s Dig., 1,068. Com. of Laws, Kos. 4, 5,10; Shamburgh v. Commugen, 10 M. R., 15; Hepburn v. Toledano, TO M. R.^ 643; 2 K. S., 511. Mr. Benjamin took the following view of the case: This record exhibits a writ of error prosecuted from the judgment of the Circuit Court, but there is neither assignment of error nor bill of exceptions. It has been so often decided by this court, that it cannot take cognisance of a cause presented in this shape, that plaintiff in error could not have taken the writ with . any other design than that of obtaining delay. Wherefore it is prayed that damages be allowed under the 17th rule of court. Arthurs and cd. v. Hart, 17 Howard, 6; Weems v. George and al., 13 Howard, 190-7; Bond v. Brown, 12 Howard, 254; Field v. United States, 9 Peters, 202; United States v. King, 7 Howard, 833; Zeller’s Lessee v. Eckhart, 4 Howard, 289. Mr. Justice McLEAK delivered the opinion of the court. This is a writ of error to the 'Circuit Court for the eastern district of Louisiana. ~ The action was brought on a judgment rendered by the Supreme Court of Louisiana; certain matters were set up in the Circuit Court, as a defence, all of which were overruled, and judgment was entered for eighteen hundred and ten dollars, with interest and costs. The only errors assigned in this court, on which a reversal of the judgment of the Circuit Cou is prayed, are: 1, that at the time suit was brought on the judg- ■ ment, in the Circuit Court, an execution had been issued on the same iudgment in the State court, which was in full orce, and on which a seizure had’been made; and 2,.that the Circuit Court erred in holding that the indebtment was not founded on a Louisiana contract. e , . • i These exceptions were not taken in the progress o in the Circuit Court, and do not appear on the recor DECEMBER TERM, 1856. 69 Moore v. Greene et al. fact that an execution was issued and returned appears in the record of the State court, but it was not made a part of the record of the Circuit Court, by bill of exceptions, and it cannot now be noticed. There is no ground of error on the face of the record, for the action of this court. The judgment of the Circuit Court is affirmed with ten per cent, damages. Elizabeth Moore, Complainant and Appellant, v. Rat Greene and Benjamin W. Hawkins. In the present case, where a bill was filed to set aside titles for frauds alleged to have been committed in 1767, the bill does not make out a sufficient case; and the evidence does not even sustain the facts alleged. And the disability to sue, arising from coverture, is not satisfactorily proved. In case of alleged fraud, it is true that the statute of limitations does not begin to run until the fraud is discovered. But then the bill must be specific in stating the facts and circumstances which constitute the fraud; and in the present case, this is not done. Where property was sold under an administrator’s sale, the presumption is in favor of its correctness; and after a long possession under it, the burden of proof is upon the party who impeaches the sale. This was an appeal from the Circuit Court of the United States for the district of Rhode Island, sitting as a court of equity. The bill was filed by Elizabeth Moore, a citizen of the State of New York, the great-grandchild of John Manton, of Rhode island, who died in 1767. It alleged a series of frauds, beginning in 1757, when one of his sons-in-law prevailed upon him by fraud to make a deed; then that his three sons-in-law conspired together to have him declared non compos mentis; then that they fraudulently set aside his will; then that one oi his sons-in-law cheated his own children out of their share 2* a e?^e’ an$ the administrator became a party to the fraud; then that the Town Council, conniving with the sons-m-law, adjudged the paper not to be a lawful will, and that all tne parties fraudulently prevented an appeal. These charges o jraud were made to include many other transactions which i is not necessary to specify. The claim of the complainant as, that she was entitled to a share of the lands held by the creed an^S ’ aU^ was, that a partition might be de- kis answer, saying that he had purchased t .311 ®amuel W. King, who derived it from his B IT ’ ?Sia i , who inherited it from his father, William and that he and the Kings had been in the uninter- 70 SUPREME COURT. Moore v. Greene et al. rupted and quiet possession of the property for more than twenty years before the filing of the bill, and therefore he pleaded the statute of limitations. He also denied all knowledge of the important facts stated in the bill. Greene answered and explained the manner in which he had come into possession of the property, viz: from his father, Samuel Greene, who was a devisee of his father, Joshua Greene, who purchased it from Josiah King, administrator of John Manton, in 1770; since which time, it had been in the possession of the family. He also denied all knowledge of the alleged frauds, and pleaded the statute of limitations. After taking much testimony, the cause came up for hearing in November, 1854, when the Circuit Court dismissed the bill with costs. The complainant appealed to this court. It was submitted on printed arguments by Jfr. Randall for the appellant, and Mr. Bradley for the appellee. The argument of Mr. Randall covered a great deal of ground, as may be supposed, from the long period of time which his investigation included. But it is not deemed material to state all these points, or the reply of the opposing counsel. The manner in which Mr. Randall proposed to escape from the plea of the statute of limitations was by alleging a series of disabilities, in this manner: John Manton died in 1767. Anna Waterman, his daughter, died before her father, leaving a daughter named Betty. Betty was born in 1756. Betty was thus in her 17th year when her grandfather died, and came of age in 1777. Betty married Carpenter before 1775, whilst she was yet a minor. _ Betty died in 1784-5, leaving Elizabeth, the present plamtitt. Elizabeth married Hernan Moore in 1804, in the 19th or 20th year of her age. Moore died in 1840. Mr. Justice McLEAN delivered the opinion of the court. This is an appeal in chancery from the Circuit Court for the district of Rhode Island. , The bill was filed to set aside certain titles for frauds alleged to have been committed in the year 1767, by a father agams his own children, for the benefit of strangers.. The frau s are stated to have been investigated and sanctioned, directly or indirectly, by the court of probate, by referees chosen y parties to determine their matters of controversy, and y highest courts of the State. DECEMBER TERM, 1,856. 71 Moore V. Greene et al. The legal history of the case commences in July, 1767, by the execution of a deed by the administrator of John Manton to Waterman and Pearce. From this period, a series of events are detailed, genealogical and historical, sweeping over near a century. Acts are stated in the bill, as it would seem, from mere vague, reports, and sometimes resting on conjectures. And many of the facts set forth, if proved, and were of modern occurrence, would not be sufficient to avoid the titles ennmer-ated; but the facts are denied generally by the answers, and not sufficiently proved by the evidence. The lands when sold were comparatively of little value, but, by the progress of time and the advance of improvements, they are now covered with large manufacturing establishments and flourishing villages. Generation after generation has risen up and passed away, of individuals connected with these titles, who increased the value of the property by their large expenditures; and the property, by deed or will, or by the law of descents, has been transmitted through the generations that have passed, without doubt as to the legal ownership. The bill was filed in 1851; its averments of facts, by which the lapse of time and the statute of limitations are sought to be avoided, are.loose and unsatisfactory. The adverse entry is alleged to have been made, under the deed of the administrator of Manton, in 1767; and it appears that Betty Water-* man, the complainant’s grandmother, through whom the title is claimed to have descended, was born in 1756. She was of age in 1777, and in ten years afterward her right was barred by the statute. It is true, the date of her coverture does not appear, but as she was only eleven years of age in 1767, she could not then have been married; and if her marriage occurred subsequently, it was a cumulative disability, which is not allowed by the statute of Rhode Island, The complainant became of age, as it appears, in 1815, and her ten years expired . in 1825. Her disability of coverture, and it was cumulative, expired in 1840, more than ten years before the bill was filed. * "hr complainant avers that from the death of John Manton, in 1767, to 1822-’3, and ’4, his estates were the subjects of egal controversy and litigation in courts of law; and that ever since, renewed and continued claims and demands, by the eirs ot Lydia Thornton and Betty Carpenter, for their proper ion of said estates, as his rightful heirs at law, upon the +i+T^nee^ °* Mantou estate, and upon all persons deriving e Un+- r ^1Gm? have been continuously prosecuted. But SP 10Iis to stop the operations of the statute must be sue-ui, and lead to a change in the possession. 72 SUPREME COURT. Betts v. Lewis and Wife. When fraud is alleged as a ground to set aside a title, the statute do6s not begin to run until the fraud is discovered; and this is the ground on which the complainant asks relief. But, in such a case, the bill must be specific in stating the facts and circumstances which constitute the fraud; and also as to the time it was discovered. This is necessary to enable the defendants to meet the fraud, and the alleged time of its discovery. In these respects the bill is defective, and the evidence is still more so. The complainant’s counsel seem to suppose, that as the defendants in their answer admit the property, at least in part, was originally acquired under a sale of Manton’s administrator, they are bound to show the proceedings were not only conformable to law, but that they must go further, and prove the debts for which it was sold were due and owing by the deceased. So far from this being the legal rule, under the circumstances of this case, the presumptions are in favor of the present occupants, and the complainants must show the a,d m i n i strator’s sale was illegal and void. After an adverse possession of more than eighty years, when the facts have passed from the memory, and, as in this case, the papers are not to be found in the probate court, no court can require of the defendants proof in regard to such sale. The burden of proof falls upon him who attempts to disturb a possession of ages, transmitted and enjoyed under the forms of law. Whether we consider the great lapse of time, and the change in the value of'the property, or the statutes of limitation, the right of the complainant is. barred. The decree of the Circuit Court is affirmed. Burr H. Betts, Appellant, v. John H. Lewis, and Mary M. E. Lewis, his Wife. According to the practice prescribed for the Circuit Courts, by this court, in equity causes, a bill cannot be dismissed, on motion of the respondents, for want of equity after answer and before the hearing; This was an appeal from the District Court of the United States for the northern district of Alabama. It was a bill filed by Betts against Lewis and wife, under the same circumstances which gave rise to the case of ew V. Darling, reported in 16 Howard, 1. It will, he seen by a reference to that case, page 6, that Burr H. Betts was the legatees in the will of Samuel Betts. DECEMBER TERM, 1856. 73 United States v. Le Baron. It is not material in the present report to- state the nature' of the case. It was argued by Mr. Butler for the appellant, and by Mr. Johnson for the appellees. Mr. Justice CURTIS delivered the opinion of the court. This is an appeal from the decree of the District Court of the United States for the northern district of Alabama, having the powers of a circuit court. The appellant filed his bill in that court to charge a legacy on property alleged to have come to the hands of the respondents, and to be chargeable with its payment. After answers had been filed, and while exceptions to one of the answers were pending, the respondents moved to dismiss the bill for want of equity, and the court ordered it to be dismissed. This was irregular, and the decree must be reversed. It is understood to be in conformity with the practice of the State courts of Alabama to entertain such a motion at any stage of the proceedings. But the equity practice of the courts of the Ignited States is governed by the rules prescribed by this court, under the authority conferred upon it by the act of Congress, (McDonald v. Smalley, 1 Pet., 620,) and is the same in all the States. And this practice does not sanction the dismissal of the bill on a motion made while the parties are perfecting the pleadings. The question whether contains any equity, may be raised by a demurrer. If the defendant answer, this question cannot be raised until the hearing. Non constat that a defect rqay not be removed before the hearing. The case must be remanded to the Circuit Court, and if any defects exist in the bill capable of being cured by amendments, as no replication has been filed, it is within the rules of ordinary practice to allow them to be made. The United States, Plaintiff in Error, v. Charles Le Baron. The bom? ^me its delivery, not from its'date. reaches the t> postmaster takes effect and speaks from the time that it of its date mas*er General and is accepted by him, and not from the day forward ’ r°m ^me w^en it is deposited in the post office to be sent a coUector of ^h^custom^6611 & ^is description and a bond given by 74 SUPREME COURT. United States V. Le Baron. The nomination to an office by the President, confirmation by the Senate, signature of the commission, and affixing to it the seal of the United States,- are all the acts necessary to render the appointment complete. Hence, the appointment is not rendered invalid by the subsequent death of the President before the transmission of the commission to the appointee, even where it is necessary that the person appointed should perform certain acts before he can legally enter upon the duties of the office. This case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Alabama. It was an action of debt upon the bond of a deputy postmaster at Mobile, signed Oliver S. Beers, the officer, and Charles Le Baron and George K. Stewart, his sureties. The statement of the case contained in the opinion of the court renders it unnecessary to recite the demurrers to the declaration and pleas, or the replications and rejoinders which were in the , record. The point in controversy was found in the following charge given to the jury: Upon this evidence the court charged the jury, that the recital in the condition of the bond sued on, “whereas Oliver S. Beers is deputy postmaster at Mobile,” relates to the office he held when the bond was signed, and could not refer to a term of office not yet commenced. The court further charged and said, that, according to the strict propriety of language, the said recital relates to the precise period of time when the recital was written, (speaking as it does of the present time,) and not to the time when it was executed by its delivery, which the admitted proof shows took place on a subsequent day. , # That at the time said bond Was signed, the said Beers was not in office under his appointment, by and with the advice and consent of the Senate, and therefore they, the jury, ought to find for the defendant. . To which charge of the court the plaintiffs, by their attorneys, then and there excepted, and asked the court to charge the jury that the bond related to, and was intended to provide, a security for the faithful discharge by Beers of the duties, of the office of deputy postmaster at Mobile, under the appointment by and with the consent of the Senate; which charges the court refused to give; and plaintiffs then and there excepted, and asked the court to charge the jury that it was for them to determine to which term of said office the said bond related, and that the recital in it, that “Beers is deputy postmaster at Mobile,” must be considered as made at the time when the bond was delivered and executed; which charge court also refused to give; and the plaintiffs then an DECEMBER TERM, 1856. 75 United States v. Le Baron. excepted to such refusal, and prayed the court to sign and seal this their bill of exceptions, which is done accordingly, in term time. John Gayle, Judge, [seal.] The case was argued by Jfr. Cushing (Attorney General) for the United States, and by J/r. Stewart for the appellee. Mr. Justice CURTIS delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States for the southern district of Alabama, in an action of debt, founded on an official bond of Oliver S. Beers, as deputy postmaster at Mobile, the defendant being one of his- sureties. It appeared, on the trial in the Circuit Court, that Beers was appointed to that office by the President of the United States, during the recess of the Senate, and received a commission, bearing date in April, 1849, to continue in force until the end of the next session of the Senate, which terminated on the thirtieth day of September, 1850. It also appeared, that in April, 1850, Beers was nominated by the President to the Senate, as deputy postmaster at Mobile; and the nomination having been duly confirmed, a commission was made out and signed by President Taylor, bearing date-on the twenty-second day of April, 1850; but it had not been transmitted to Beers on the first day of July, 1850, when the bond declared on bears date. Beers took charge of the post office at Mobile, before his second appointment, and continued to act, without intermission, until he was removed from office m February, 1853. The default, assigned as a breach of the bond, was admitted to have occurred under his second appoint-ment ; and the principal question upon this writ of error is, re j th.6 bond declared on secures the faithful performance 0t the duties of the office under the first or under the second appointment. condition of the bond recites: VWhereas the said Oli-VeTL £ er-S is postmaster at Mobile aforesaid,” &c. Ti> j'7^1 ln5uiry to what date is this recital to be referred? fa w^° Presided at the trial, ruled that it re- rred to the office held by Beers when the bond was signed. □ e p ,,very a deed is presumed to have been made on the “ate. But this presumption may be removed by r was delivered on some subsequent day; and R-nooita - dvery on some subsequent day is shown, the deed * Tn rnA , 8u^se(luent day, and not on the day of its date. 4? Tvr^0n 8 ^ase’ (d Co., 1,) a lease, bearing date on the i May, to hold for three years “from henceforth,” was 76 SUPREME COURT. United States v. Le Baron. delivered on the 20th of June. It was resolved, that “from henceforth” should he accounted from the day of delivery of the indentures, and not from the day of their date; for the words of an indenture are not of any effect until delivery— traditio loqui facit chartam. So in Ozkey v. Hicks, Cro. Jac., 263, by a charter-party, under seal, bearing date on the 8th of September, it was agreed that the defendant should pay for a moiety of the corn which then was, or afterwards should be, laden on board a certain vessel. The defendant pleaded that the deed was not delivered until the 28th of October, and that on and after that day there was no corn on board; and on demurrer, it was held a good plea, because the word then was to be referred to the time of the delivery of the deed, and not to its date. And the modern case of Steele v. March, 4 B. and C., 272, is to the same point. A lease purported on its face to have been made on the 25th of March, 1783, habendum from the 25th of March now last past. It was proved that the delivery was made after the day of the date, and the Court of King’s Bench held that the word now referred to the time of delivery, and not to the date of the indenture. At the trial in the Circuit Court, it appeared that on the day after the date of the bond, Beers, in obedience to instructions from the Postmaster General, deposited it, together with a certificate of his oath of office under his last appointment, in the mail, addressed to the Postmaster General at Washington. . Tn Broome v. The United States, 15 How., 143, it was held that a collector’s bond might be deemed to be delivered when it was put in a course of transmisson to the Comptroller of the Treasury, whose duty it is to examine and approve or reject such bonds. But this decision proceeded upon the ground that the act of Congress requiring these bonds, and their approval, had allowed the collector to exercise his office for three months without a bond; and that consequently the approval and delivery were not necessarily simultaneous acts, nor need the approval precede the delivery; and the distinction ^tween bonds of collectors and those of postmasters is there adverted to. The former may take and hold office for three months without a bond. The latter must give bond, with approved security, on their appointment; and there is no time allowed them, after entering on their offices, to comply with this requirement. The bond must therefore be accepted by e Postmaster General, as sufficient in point of amount an security, before it can have any effect as a contract. . wise, the postmaster might enter on the office merely on gi g DECEMBER TERM, 1856. 77 United States v. Le Baron.' a bond, which,, on its presentation, the Postmaster General might reject as insufficient. In other words, the person appointed might act without any operative bond, which, we think, was not intended by Congress. It is like the case of Bruce et al. v. The State of Maryland, 11 Gill and John., 382, where it was held that the bond of a sheriff took effect only when approved by the county court; because it was only on such approval that the sheriff was authorized to act. The purpose of the obligee was to become security for one legally authorized to exercise the office; not for one who enters on it unlawfully, because he failed to comply with the requirement to furnish an approved bond; and this purpose can be accomplished only by holding that the appointee cannot act, and the bond cannot take effect, until it is approved. Our opinion is, therefore, that this bond speaks only from the time when it reached the Postmaster General, and was accepted by him; that until that time it was only an offer, or proposal of an obligation, which became complete and effectual by acceptance; and that, unlike the case of a collector’s bond, which is not a condition precedent to his’taking office, and which maybe intended to have a retrospective operation, the bond of a postmaster, given on his appointment, cannot be intended to relate back to any earlier date than the time of its acceptance, because it is only after its acceptance that there can be any such holding of the office as the bond was meant to apply to. Now, at, the time when this bond was accepted by the Postmaster General, Beers had been nominated and confirmed as deputy postmaster; he had given bond in such a penalty, and with such security, as was satisfactory to the Postmaster Gen-e^al J had taken the oath of office, and there was evidence that a certificate thereof had been filed in the General Post Office. . .hTponthis state of facts, we are of opinion that at that time his holding, under the first appointment had been superseded by his holding under the second appointment; and when the ,on^ says> “is now postmaster,” it refers to such holding un-er the second appointment, and is a security for the faithful ischarge of his duties under the second appointment. It was suggested at the argument, that this bond was not, in point ot fact, taken in reference to the new appointment, but as a new. bond, called for by the Postmaster General under we authority conferred on him by the act of July 2, 1836. 5 btat. at Large, 88, sec. 37. + there are several answers. No such ground appears have been taken at the trial, and the rulings of the court, 78 SUPREME COURT. United States v. Le Baron. which were excepted to by the plaintffs in error, precluded any such inquiry. These rulings were, that the holding to which the bond referred was a holding on the first day of July, and that Beers was in office on that day under the first appointment, and not under the second. This put an end to the claim, and rendered a verdict for the defendant inevitable. But if this were otherwise, parol or extraneous evidence that the bond was not intended to apply to the holding under the second appointment, because it was a new bond taken to supersede an old one, would be open to the objections which the defendants in error have so strenuously urged. There is no ambiguity in the bond. It refers to a holding at some particular date. The law determines that date to be the time when the* bond took effect. Nothing remains but to determine upon the facts, under which appointment Beers then held; this also the law settles, and when it has thus been ascertained that he then held under the second appointment, evidence to show that the bond was not intended to apply to that appointment would directly contradict the bond, for it would show it was not intended to apply to the appointment which Beers then held, while the Bond declares it was so intended. The defendant in error further insists, that Beers was not in office, under the second appointment, at the time this bond took effect, because the commission sent to him was signed by President Taylor, and was not transmitted until after his death. "When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete. Congress may provide, as it has done in this case, that certain acts shall be done by the appointee before he shall enter on the possession of the office under his appointment. These acts then become conditions precedent to the complete investiture of the office; but they are to be performed by the appointee, not by the Executive; all that the Executive can do to invest the person with his office has been completed when the commission has been signed and sealed; and when the person has performed the required conditions, his title to" enter on the possession of the office is also complete. The transmission of the commission to the officer is not essential to his investiture of the office.. If, by any inadvertence or accident, it should fail to reach him, his possession ot the office is as lawful as if it were in his custody. * It is but evidence of those acts of appointment and qualification which constitute his title, and which may be proved by other evi- DECEMBER TERM, 1856. 79 Willot et al. v. Sandford. dence, where the rule of law requiring the best evidence does not prevent. It follows from these premises, that when the commission of a postmaster has been signed and sealed, and placed in the hands of the Postmaster General to be transmitted to the officer, so far as the execution is concerned, it is a completed act. The officer has then been commissioned by the Preffident pursuant to the Constitution; and the subsequent death of the President, by whom nothing remained to be done, can have no effect on that completed act. It is of no importance that the person commissioned must give a bond and take an oath, before he possesses the office under the commission; nor that it is the duty of the Postmaster General to transmit the commission to the officer when he shall have done sb. These are acts of third persons. The President has previously acted to the full extent which he is required or enabled by the Constitution and laws to act in appointing and commissioning the officer; and to the benefit of that complete action the officer is entitled, when he fulfils the conditions on his part, imposed by law. , We are of opinion, therefore, that Beers was duly commissioned under his second appointment. Por these reasons, we hold the judgment of the Circuit Court to have been erroneous, and it must be reversed, and the cause remanded with directions to award a venire facias de novo. The United States, Plaintiffs in Error, "| In error to the Circuit Court of the Uni-vi >• ted States for the southern district of George N. Stewart. J Alabama. Mr. Justice CURTIS. .. e opinion of the court, in the preceding case, determines this, and the judgment of the Circuit Court must be reversed, m conformity with that opinion. Sebastian Willot, John McDonald, and Joseph Hunn, Plaintiffs in Error, v. John F. A. Sandford. c°nfirmations by Congress of the same land in Missouri, the JctL . ahon gives the better title>' and the j‘ury are not at liberty, in an the confirmatio111611^ survey and patent did not correspond with ^the ap/nf w situated could be confirmed; nor were the lands affected by adjustment J811’ Providing for the sale of public lands and the final adjustment ot land claims. cuit^AiS86^?8 brought up, by writ of error, from the Cir-urt of the United States for the district of Missouri. 80 SUPREME COURT. Willot et al. n. Sandford. It was an action of ejectment brought by Sandford, a citizen of New York, to recover the following-described premises, viz: A certain tract of land, containing 750 arpens, more or less, which was claimed by one Antoine Lamarche, as derived to him from the Government of Spain, was surveyed for said Lamarche by John Harvey, a deputy surveyor under the Government of the United States, and the plat of said survey duly certified by said Harvey, under date of December 20, 1805, and the same received for record by Antoine Soulard, surveyor general under the Government of the United States for the Territory of Louisiana, February 27, 1806; whidh said tract is situate, lying, and being on Lamarche’s creek, alias Spencer’s run, in St. Charles county, Missouri, and the claim thereto was duly confirmed to the said Antoine Lamarche, or his legal representatives, by an act of Congress entitled “An act confirming claims to lands in the State of Missouri, and for other purposes,” approved July 4, 1836. It is unnecessary to recite the evidences of title set forth upon the trial by the plaintiff and defendants, as they are set forth on both sides in the opinion of the court. Amongst other rulings of the Circuit Court were the following, viz: 5. That the survey made by the United States surveyor, and on which issued the patent certificate and patent, is evidence of a high character that the land included in the survey is the same as that included in the confirmation to the legal representatives of Dissonet. 6. That said survey is not conclusive evidence that the land confirmed to the legal representatives of Dissonet was correctly located and surveyed by said survey. 7. If the jury, therefore, believe that the land sued for is not within the confirmation to the legal representatives of Dissonet, although it may be within the survey and patent, then such confirmation, survey, and patent, cannot protect said defendants in this suit. It is not necessary to mention any of the other instructions or rulings of the Circuit Court. The case was argued by Mr. Blair for the plaintiffs in error, and Mr. Lawrence for the defendant, upon which side there was also a brief filed by Mr. Glover. Mr. Justice CATRON delivered the opinion of the court. Peter Chouteau, claiming under one Dissonet, laid before Recorder Bates a claim for 800 arpens of land, situate in St. DECEMBER TERM, 1856. 81 Willot et al, v. Sandford. Charles county, Missouri. The evidence presented to the recorder was a certificate of a private survey embracing the claim as set up, with proof that Dissonet had inhabited and cultivated the land from 1798 to 1805. The recorder pronounced the claim valid as a settlement right to the extent of 640 acres, and declared that it ought to be surveyed as nearly in a square as might be, so as to include Dissonet’s improvements; and, furthermore, that the land should be surveyed at the expense of the United States. This report was confirmed by Congress, by the act of April 29,1816. The land was surveyed in 1817, by authority of the United States. A patent certificate was forwarded to the General Land Office by the recorder of land titles at St. Louis, in 1823, and a patent issued on it in 1850. Protection is claimed by the defendants, under the survey and patent. The jury .was instructed by the Circuit Court, that the survey and patent were not conclusive evidence that the land they embraced was correctly located and surveyed according to the confirmation; and if they believed that the land sued for was not within the confirmation of the legal representatives of Dissonet, although it may be within the survey and patent, then the survey and patent would not protect the defendants. Exceptions were taken to this ruling. The jury found that the official survey did not correspond to the confirmation, but that it was illegally extended so as to interfere with the claim on which the plaintiff relies. His claim is this: In 1805, Antoine Lamarche caused a private survey to be made by Harvey for 750 arpens of land, which he claimed by right of settlement. Lamarche laid his claim before the board of commissioners, but produced no evidence of inhabitation and cultivation; indeed, no evidence at all, except the surveyor’s certificate. On coming before the board, in 1811, the claim was of course rejected; and thus it lay until 1833, when the board of commissioners organized under the act of July 9, 1832, took evidence which established the fact to their satisfaction, that Lamarche had inhabited and cultivated the land, and was entitled to a confirmation; and in 1835 they recommended to Congress that the claim ought to be confirmed according to Harvey’s survey of 1805; and it was thus confirmed by the act of July 4, 1836. Harvey’s survey covers the land in dispute, which is overlapped oil its eastern boundary by the survey and calls of the patent to Dissonet; and within this interference the defendants hold possession. Up to the date of the confirmation of Lamarche’s claim, in. vol. xix. 6 82 SUPREME COURT. Vandew at er v. Mills, Claimant Steamship Yankee Blade. 1836, it had no standing in a court of justice. So this court has uniformly held. Les Bois v. Brommell, 4 Howard. In the next place, the United States reserved the power to survey and grant claims to lands in the situation that these contending claims were when confirmed; nor have the courts of justice any authority to disregard surveys and patents, when dealing with them in actions of ejectment. This court so held in the case of West v. Cochran, and will not repeat here what is there said. When the survey of 1817 for Dissonet’s land was recognised at the surveyor general’s office as properly executed, which was certainly as early as 1823, then Dissonet had a title that he could enforce by the laws of Missouri, and which was the elder and better; it being settled that where there are two confirmations for the same land, the elder must hold it. A more prominent instance to this effect could hardly occur, than that of rejecting the younger confirmation in the case of Les Bois v. Brommell, above cited. The act of 1811, reserving lands from sale which had been claimed before a board of commissioners, has no application to such a case as this one. It was so declared in the case of Menard v. Massey, 8 Howard, 309, 310. It is ordered, that the judgment of the Circuit Court be reversed, and a venire de novo awarded. Robert J. Vandewater, Appellant, v. Edward Mills, Claimant of the Steamship Yankee Blade, her Tackle, &c. Maritime liens are stricti juris, and will not be extended by construction.. Contracts for the future employment of a vessel do not, by the maritime law, hypothecate the vessel. The obligation between ship and cargo is mutual and reciprocal, and does not take place till the cargo is on board. An agreement between owners of vessels to form a line for carrying passengers ana freight between New York and San Francisco, is but a contract for a limited partnership, and the remedy for a breach of it is in the common-law courts. This was an appeal from the Circuit Court of the United ■States for the district of California. ' • It was a libel, filed originally in the District Court, by Vandewater, against the steamer Yankee Blade, for a violation of the following agreement: “This agreement, made this twenty-fourth day of September, 1853, at the city of Hew York, between Edward Mills, as agent for owners of steamship Uncle Sam, and William H. DECEMBER TERM, 1856. 83 Vandew ater v. Mitts, Claimant Steamship Yankee Blade. Brown, as agent for the owners of steamship America, witnesseth, that said Mills and Brown hereby agree with each other, as agents for the owners of said ships before named, to run the two' ships in connection for one voyage, on terms as follows, viz: “ Of all moneys received from passengers, and for freight contracted through, between New York and San Francisco, both ways, the Uncle Sam shall receive seventy-five per cent., and the America shall receive twenty-five per cent. The money to be received here, by said E. Mills, and the share of the Amer-ica to be paid over to William II. Brown, or to his order, (before the sailing of the ship,) and the share due the America, of moneys received on the Pacific side, to be paid over to said Brown, or to his order, immediately on the arrival of the passengers in New York, by E. Mills, who guaranties, as agent aforesaid, the true and honest return of all funds received by his agents on the Pacific. It is understood that this trip is to be made by the Uncle Sam, leaving San Francisco on or about the 15th of October, and the America leaving New York on or about the 20th of October next. “Each ship is to pay all expenses of her running and outfits, and to be responsible for her own acts in every respect. Each ship is to retain all the money received for local freight or passengers ; that is, for such freight and passengers as only pay to the ports the* individual ship runs to, without any division with the other ship. “No commissions are to be charged anywhere on any receipts for the America, by said Mills, in division, but the expense of advertising and the amount paid out for runners, at all points, are to be borne by each ship in the same proportion as receipts are divided between them. “In consideration of all the above well and truly performed in good faith, Edward Mills, as agent for the steamship Yankee Blade, hereby agrees, that when the America arrives at Panama, on her voyage hence for the Pacific ocean, said ship Yankee Blade shall leave New York at such time as to connect with the America, conveying passengers and freight*on the same terms as is hereinbefore agreed, (say 25 per cent, to the Yankee Blade, and 75 per cent, to the America.) Provided, only, that said connection shall be made at a time that will not prevent the Yankee Blade from making her connection ^Thh the Uncle Sam, at her regular time.” After the usual preliminary proceedings in cases of libel, the Pr2£tors for the claimant filed the following exceptions: - Ihe exceptions of Edward Mills, claimant and sole owner oi the steamship Yankee Blade, to the libel of Robert J. Van- 84 SUPREME COURT. Vandew ater v. Mills, Claimant Steamship Yankee Blade. dewater, libellant, allege that the said libel is insufficient, as follows: First Exception.—Thatj on the face of said libel, it appears that the alleged cause or causes of action therein set forth, are not within the admiralty and maritime jurisdiction of this honorable court. Second Exception.—There is no cause of action set forth in Said libel, whereby the said steamship Yankee Blade can be proceeded against in rem in this honorable court. Third Exception.—On the face of said libel, jt appears the libellant is not entitled to the relief therein prayed for, nor to any decree against the s4id steamship. - And, therefore, the said claimant prays that the said libel may be dismissed with costs. In June, 1855, the district judge sustained the exceptions, and dismissed the libel, whereupon the libellant appealed to the Circuit Court. In September, the Circuit Court affirmed the decree, and the libellant brought the case up to this court. It was argued by Mr. Cutting for the appellant, and Mr. Blair for the appellee. Mr. Cutting made the following points : I. Agreements for carrying passengers and freight on the high seas are maritime contracts, pertaining exclusively to the business of commerce and navigation, and may be enforced specifically against the vessel by courts of admiralty proceeding in rem. No express pledge is necessary in order to create the lien. The jurisdiction in rem for breach of contracts of affreightments, by bills of lading or otherwise, is recognised by numerous cases. The ground of such jurisdiction, rests upon the maritime nature and subject-matter of the contract. 6 How. U. S. R., 392. .... Contracts to carry passengers are analogous in principle. They are of a maritime nature in their essence and subjectmatter; and when entered into with a particular ship, they bind her to the due performance of the service. The Pacific, 1 Blatch. R., 576, and the cases and arguments there presented. H. This court has recognised and adopted this principle. 1. Maritime torts to passengers may be redressed in the admiralty in rem, by reason of the vessel being bound by the contract: 8. B. New World v. King, 16 How. U. 8. R., 469. 2. The case of the New Jersey Steam Navigation Company v. The Merchants’ Bank, 6 How. U. 8. R., 392, establishes DECEMBER TERM, 1856. 85 Vandewater v. Mills, Claimant Steamship Yankee Blade. that contracts to be executed on the seas are maritime in their nature, and within the admiralty jurisdiction, as well in personam as in rem. The principle of that case embraces the present. UI. The contract, by Mills, as agent of the owners of the Yankee Blade, to proceed from New York with passengers and freight, to carry them to Panama, and to deliver them to the America, to be carried by her to San Francisco, is for a maritime service, to be performed upon the sea, and within the jurisdiction of the District Court of the United States. 1. The mode or rate of compensation to be paid therefor does not affect the jurisdiction of the court. The action is for a non-performance of the contract—not for an accounting. The circumstance that the amount of damages might, in part, depend upon the number of passengers that would have been carried, is of no consequence. 2. The agreement did not constitute a partnership between the steamers. Neither party had any joint interest in the vessel of the other, or in the voyage; there was no sharing of losses; each ship was to pay her own expenses of running and of outfits, and was responsible for her own acts in every respect. The agreement to divide gross receipts was merely a mode of ascertaining the compensation to each vessel, for her separate services. 3. Even if the agreement were to be treated as a mutual arrangement between two vessels, for a joint service, to be rendered by them, on the sea—the compensation therefor to be an apportionment between them, of the whole freight and passage money to be earned by both—it would be a maritime contract, over which the admiralty has jurisdiction. 3 How., 568. 4. The contract is not one merely preliminary to a charter-party, but is a complete arrangement, to be treated as a charter-party, containing in itself the substantial provisions of such an instrument—a definite voyage to be performed on one side, and a definite compensation to be paid therefor by the other side. 3 Sum. R., 144, 148, 149. Each vessel hired the use and employment of the other, for the proposed, adventure; each was to receive, as compensation tor such hiring, a certain sum, proportioned to the receipts of both vessels, for that trip. The distinctive characteristics of a charter-party are found.. Ihe question of jurisdiction does not depend upon the par-cular name or character of the instrument, but whether it a maritime contract or not The Tribune, 3 Sum. IL, 144,148. 7 86 SUPREME COURT. Van dewater v. Mills, Claimant Steamship Yankee Blade. ' 5. The objection of the Circuit Court, that the contract was made by the owners, at the home port, does not appear to be authorized by any fact established in the case. The allegation of residence in the claim, (p. 8,) was merely formal, and not issuable. It does not appear where the owner or owners of the Yankee Blade resided at the time of the contract, nor what was her home port. 6. But assuming that the Yankee Blade belonged to'New York, and that her owners resided there at the time of the contract, the Circuit Court erred in supposing that there could be no lien for that reason. The existence of a lien depends on the nature of the contract; and if that be maritime, and creates a lien, the circumstance that it is executed by the owner in person does not affect it. 1 Valin Ord. de la Mar., 630, Liv. ITT, Tit. I, Art. H; 2Boul. Pat. Droit Com., 298; 3 Pardessus Lois Mar., 159; Ib., 281,427; 2 Boucher Consul., 379, sec. 675; p. 457, sec. 870; 4 Pardessus, p. 40. Contracts of affreightment and to carry passengers are frequently (and in New York most generally) made by the owners, or their immediate agents, in the home port. When bills of lading are signed in the home port by the owner, the lien of the shippers exists equally, as if the master had signed them. The following are cases of liens created by contracts made with the owners in the home port: The Pacific, 1 Blatch. R., 576; The Aberfoyle, Ib., 207; Bearse v. Pigs Copper, 1 Sto., 314; The Mary, 1 Paine R., 671; The Draco, 2 Sum., 179. 7. The conclusion of the learned circuit judge, that this was a personal agreement between the owners of the two ships, and that a personal credit existed, which excluded the idea of a lien on the vessels, is not authorized by the facts. The contract describes each of the parties to it, “as agent” of the owners. The “agents” acted as representatives of the vessels; the owners are not named or referred to. The inference is, that a mere personal credit was not relied on, to the exclusion of a lien. Jfr. Blair made the following points: 1. That the contract on which this proceeding is founded, is not a maritime contract. . It is an agreement between the owners of two steamships, to run their vessels in combination, in the transportation of freight and passengers, between New York and San Francisco, and to divide the proceeds between them p and also an engagement, by one of the parties who is to receive all the money, to pay over to the other his proportion. , So much of this contract as relates to maritime service is ou DECEMBER TERM, 1856. 87 Vandew ater v. Mills, Claimant Steamship Yankee Blade preliminary. No maritime service is contracted for, one to the other. Such services are thereafter to be contracted for, and rendered to other persons by both the parties. In such case, there is no jurisdiction. Sheppard v. Essex Ins. Co., 3 Mason, 6. There is no difference in principle in this, from the contract which this court considered in the case of Phoebus v. The Orleans, (11 Peters, 175.) The owners of the Orleans had an agreement to combine their means, and, as part owners, to run a single’ vessel for the public accommodation. Here is a combination, in which different vessels are run for the same purpose. The court would take no account between the owners of the Orleans. Whether one of the parties to the enterprise had failed to contribute his share, was not g, subject of ad-hiiralty jurisdiction. There is no difference, as affects that question, whether it be alleged, as in the case of the Orleans, that one party had contributed more than the other towards the enterprise, or whether, as in this case, it be alleged that one party refused to contribute at all. The similitude of the contracts would be obvious, if the claim here were for the earnings of the trip contemplated in the contract. But it is in right of such earnings that this suit is brought, and though no such earnings were received as were contemplated, it is alleged that this is the fault of the other party, and should not prevent an accounting as if they had been actually received. Consortship, it is true, is treated as a class of maritime contracts by Judge Conkling, pp. 15, 236, 849, of his Admiralty Jurisdiction. But he says the case of Andrews v. Wall, 3 Howard, p. 568, is the only reported case relating to it. But the question there was, not whether consortship was a maritime contract, but related to the distribution of salvage among those entitled. The consort contract was incidental only, and was considered merely so far as to see whether it was subsisting at the time of the wreck. The nature of the consideration of the contract was not material. The case of Cutter v. Roe, 7 Howard, 730, also shows that the nature of the consideration will not give character to a contract, or give jurisdiction even in personam. 2. But if this be regarded a maritime contract at all, it is certainly only partly so; the object, as between the parties, being to stipulate for the division, of the proceeds to accrue to them from their services to others. It therefore falls within the case, of Plummer v. Webb, 4 Mason, 380, and L’Arena v. Manwaring, Bee, 199, in which the court declined jurisdiction, because the whole contract was not of a maritime nature. 88 SUPREME COURT. Vandewater v. Mills, Claimant Steamship Yankee Blade. 3. But the proceeding is in rem, and the advocates of the largest measure of admiralty jurisdiction for the district courts admit that they have not jurisdiction to enforce maritime contracts by such proceedings, unless the contract expressly or by implication creates a lien on the ship. ThevDraco, 2 Sumner, 180. It is contended that this contract is in the nature of a charter-party, and therefore a lien is implied. See definition of charter-party, Abbott, p. 241. It is certainly not a contract for the hiring of a ship’ or any part of one ; nor is it a contract for the transportation of persons or property. The parties to such contracts are carriers on one side, and freighters, charterers, or passengers, on the other. Here is merely an arrangement between carriers, in contemplation of making such contracts, to enable them to co-operate in fulfilling them, and for the division of the proceeds between themselves. Ko maritime service is rendered to each other. The relations to each other are those of employees of a common employer ; and it is expressly stipulated that each is to render to their common employers the service contemplated, at their own cost and risk. The contracting parties are neither of them freighters or passengers, and there is not the remotest analogy upon which to found a claim for the remedies allowed such parties by the maritime law. But even an express contract of affreightment creates no lien on the vessel till the cargo is shipped. Schooner Freeman v. Buckingham, 18 Howard, p. 188. 4. The case of Blaine v. Carter, 4 C., 331, shows that the law does not favor implied hypothecations of the ship in obligations executed by the owner in the home port ; and this is admitted by Judge Story in the case of the Draco above cited. In the absence of any precedent or established usage creating a lien in like eases, with reference to which the parties could be presumed to hâve contracted, there ought to be explicit language in the contract itself to create such a lien. It would be mischievous to annex liens by implication to such contracts ; there would be nothing to give notice of their existence; they are not accompanied by possession, and so are not lost by being out of possession; and they do not arise from any shipments, supplies, or services, or other transactions which can be seen or known—so there would be no safety to the purchaser of vessels, if liens can be so created. Mr. Justice GRIER delivered the opinion of the court. The libel in this case sets forth a contract between the owners of certain steamboats, of which the Yankee Blade was one* DECEMBER TERM, 1856. 89 Vandewater v. Mills, Claimant Steamship Yankee Blade. to convey freight and passengers between New York and California. Among other things, it was agreed that the America should proceed to Panama, and the Yankee Blade should leave New York at such time as to connect .with the America. The owner of the Yankee Blade refused to employ his vessel according to this agreement, and sent her to the Pacific under a contract with other persons. For this breach of contract the libellant demands damages, assuming that the vessel is subject, under the maritime law, to a lien which may be enforced in rem in a court of admiralty. The Circuit Court dismissed the libel, being of opinion “that the instrument is of a description unknown to the maritime law; that it contains no express hypothecation of the vessel, and the law does not imply one.” In support of his allegation of error in this decree, the learned counsel for the appellant has endeavored to establish the following proposition: “Agreements for carrying passengers are maritime contracts, pertaining exclusively to the business of commerce and navigation, and consequently may be enforced specifically against the vessel by courts of admiralty proceeding in rem.” Assuming, for the present, the premises of this proposition to be true, let us inquire whether the conclusion is a legitimate consequence therefrom. The maritime “privilege” or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is a “jus in re,” without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty. The foreign and other attachments of property in the- State courts, though by analogy loosely termed proceedings in rem, are evidently not within the category. But this privilege or lien, though adhering to the vessel, is a secret one; it may operate to the prejudice of general creditors and purchasers without notice; it is therefore “strictijuris,” and cannot be extended by construction, analogy, or inference. “Analogy,” says Pardessus, (Droit Civ., vol. o, 597,) “ cannot afford a decisive argument, because privileges are of strict right. They are an exception to the rule by which all creditors have equal rights in the property of their debtor, and an exception should be declared and described in express words; we cannot arrive at it by reasoning from one case to another.’’ ® These principles will be found stated, and fully vindicated 90 SUPREME COURT. Vandewater v. Mills, Claimant Steamship Yankee Blade. by authority, in the cases of The Young Mechanic, 2 Curtis, 404, and Kiersage, Ibid., 421; see also Harmer v. Bell, 22 E. L. and E., 62. Now, it is a doctrine not to be found in any treatise on maritime law, that every contract by the owner or master of a vessel, for the future employment of it, hypothecates the vessel for its performance. This lien or privilege is founded on the rule of maritime law as stated by Cleirac, (597:) “Le batel est obligee a la marchandise et la marchandise an batel.” The obligation is mutual and reciprocal. The merchandise is bound or hypothecated to the vessel for freight and charges, (unless released by the covenants of the charter-party,) and the vessel to the cargo. The bill of lading usually sets forth the terms of the contract, and shows the duty assumed by the vessel. Where there is a charter-party, its covenants will define the duties imposed on the ship. Hence it is said, (1 Valin, Ordon. de Mar., b. 3, tit. 1, art. 11,) that “the ship, with her tackle, the freight, and the cargo, are respectively bound (affectee) by the covenants of the charter-party.” But this duty of the vessel, to the performance of which the law binds her by hypothecation, is to deliver the cargo at the time and place stipulated in the bill of lading or charter-party, without injury or deterioration. If the cargo be not placed on board, it is not bound to the vessel, and the vessel cannot be in default for the non-delivery, in good order, of goods never received on board. Consequently, if the master or owner refuses to perform his contract, or for any other reason the ship does not receive cargo and depart on her voyage according to contract, the charterer has no privilege or maritime lien on the ship for such breach of the contract by the owners,.but must resort to his personal action for damages, as in other cases. See 2 Boulay, Paty Droit Com. and Mar., 299, where it is said, “Hors ces deux cas, (viz: default in delivery of the foods, or damages for deterioration,) il n’y a pas de privilege pretendre de la part du marchand chargeur; car si les dom-mages et interets n’ont lieu que pour refus de depart du navire, pour_ depart tardif on precipite, pour saisie du nayire ou autrement il est evident que a cet egard la creance est simple et ordinaire, sans aucune sorte de privilege.” Thus, in the case of the City of London, (1 W. Robinson, 89,) it was decided that a mariner who had been discharged from a vessel after articles had been signed, might proceed m the admiralty in a suit for wages, the voyage for which he was engaged having been prosecuted; but if the intended voyage be altogether abandoned by the owner, the seaman must seek his remedy at common law by action on the case. DECEMBER TERM, 1856. 91 Vandewater v. Mills, Claimant Steamship Yankee Blade. And this court has decided, in the case of The Schooner Freeman v. Buckingham, 18 Howard, 188, “that the law creates no lien on a vessel as a security for the performance of a contract to Transport cargo, until some lawful contract of affreightment is made, and a cargo shipped under it.” Now, the damages claimed by the libellant, in this case, are hot for the non-delivery of merchandise or cargo at the time and place according to the covenants of a charter-party, or for their injury or deterioration on the voyage, but for a refusal of the owners to employ the vessel in carrying passengers and freight from New York, so as to connect with the America when she should arrive at Panama; The owners have not made it a part of their agreement that their respective vessels should be mutually hypothecated as security for the performance of their agreement; and, as we have shown, there is no tacit hypothecation, privilege, or lien, given by the maritime law. "We have examined this case from this point of view, because the libel seems to take it for granted that every breach of contract, where the subject-matter is a ship employed in navigating the ocean, gives a privilege or lien on the vessel for the damages consequent thereon, and because it was assumed in the argument, that if this contract was in the nature of a charter-party, or had some features of a charter-party, the court would extend the maritime lien by analogy or inference, for the sake of giving the libellant this remedy, and sustaining our jurisdiction. But we have shown this conclusion is not a correct inference from the premises, and that this lien, being stricti juris, will not be extended by construction. It is, moreover, abundantly evident that this contract has none of the features of a charter-party. A charter-party is defined to be a contract by which an entire ship, or some principal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places. (Abbott on Ship., Now, by this agreement, the libellant has not hired the Yankee Blade, or any portion of the vessel; nor have the master or owners of the ship covenanted to convey any merchandise for the libellant, nor has he agreed to furnish them W- But the agent for the Yankee Blade “agrees that when the America arrives at Panama, the Yankee Blade shall leave New York, conveying passengers ancl freight,” which were afterwards to be received by the America, and transported to ban Francisco; and the passage money and freight earned divided between them—25 per cent, to the Yankee Blade, and 75 to the America. 92 SUPREME COURT. United States v. Brig Neurea. This is nothing more than an agreement for a special and limited partnership in the business of transporting freight and passengers between Kew York and San Francisco, and the mere fact that the transportation is by sea, and not by land, will not be sufficient to give the court of admiralty jurisdiction of an action for a breach of the contract. It is not one of those to which the peculiar principles or remedies given by the maritime law have any special application, and is the fit subject for the jurisdiction ot the common-law courts. The decree of the Circuit Court is therefore affirmed. The United States, Appellants, v. The Brig Keurea, her ’ Tackle, &c., William Kohler, Claimant. Where a libel for information, praying the condemnation of a vessel for violating the passenger law of the United States, states the offence in the words of the statute, it is sufficient. This was an appeal from the District Court of the United States for the northern district of California. ♦ The case presented a general demurrer to the following libel for information: Ik the District Court of the United States for the Northern District of California. In Admiralty. To the Han. Ogden Hoffman, Jr., Judge of the District Court of the United States for the Northern District of California: The libel of Samuel W. Inge, attorney of the United States ' for the northern district of California, who prosecutes on behalf of the said United States against the brig Keurea, and against all persons intervening for their interest ^therein, in a cause of forfeiture, alleges and informs as follows: 1. That Richard P. Hammond, Esq., collector of the customs for the district of San Francisco, heretofore, to wrt, on the thirty-first day of August, in the year of our Lord eighteen hundred and fifty-four, at the port of San Francisco, ana within the northern district of California, on waters Riat are navigable from the sea by vessels of ten or more tone’ bur seized as forfeited to the use of the said United States said brig Keurea, being the property of some person or persons to the said attorney unknown. ;' 2. That one Kohler, master of the said brig Keurea, which is a vessel owned wholly or in part by a subject or subjec DECEMBER TERM, 1856. 93 United States v. Brig Neurea. the kingdom of Sweden, did on the first day of June, in the year of our Lord eighteen hundred and fifty-four, at the foreign port of Hong Kong, in China, take on board said vessel two hundred and sixty-three passengers, which was a greater number of passengers than in the following proportion to the space occupied by them and appropriated for their use on board said vessel, and unoccupied by stores or other goods not being the personal luggage of such passengers, that is to say, on the lower deck or platform, one passenger for every fourteen clear superficial feet of deck, with intent to bring said passengers to the United States of America, and did leave said port with the same; and afterwards, to wit, on the twdnty-sixth day of August, in the year of our Lord eighteen hundred and fifty-four, did bring the said passengers, being two hundred and sixty-three in number, on board the said vessel, to the said port of San Francisco, within the jurisdiction of the United States, and that the said passengers so taken on board of said vessel, and brought into the United States as aforesaid, did exceed the number which could be lawfully taken on board and brought into the United States as aforesaid, as limited by the first section of the act of Congress approved February 22, 1847, entitled “An act to regulate the carriage of passengers ” “in merchant vessels,” to the number of twenty in the whole, in violation of the act of Congress of the United States in such eases made and provided, and that by force and virtue of the said acts of Congress, in such case made and provided, the said vessel became and is forfeited to the use of the said United States. And the said attorney saith, that by reason of all and singular the premises aforesaid, and by force of the statute in such case made and provided, the aforementioned vessel became and is forfeited to the use of the said United States. Lastly, that all and singular the premises aforesaid are true, and within the admiralty and maritime jurisdiction of the United States and of this court. Wherefore the said attorney prays the usual process and monition of this court in this behalf to be made, and that all persons interested in the said vessel may b<5 cited in general and special to answer the premises, and all due proceedings being had, that the said vessel may be, for the causes aforesaid and other appearing, be condemned by the definitive sentence and decree of this court, as forfeited to the use of the said United States, according to the form of the statute of ^n^cd States in such case made and provided. The act of Congress referred to will be found in 9 Stat, at Large, 127. 94 SUPREME COURT. United States v. Brig Neurea. The court below sustained the demurrer and dismissed the libel, from which decree the United States appealed. It was argued for the United States by Mr. Cushing, (Attorney General.) Mr. Justice GRIER delivered the opinion of the court. The Swedish brig Neurea was seized by the collector of customs at San Francisco, as forfeited to the United States under the passenger act of 1847. The record in this case exhibits the libel for information, filed on behalf of the United States, a demurrer thereto by the claimant, and a decree of the court below dismissing the libel. The appeal, therefore, brings under review the question of the sufficiency of the libel. The claimant sets forth the following grounds of demurrer: 1. That the said libel states no sufficient cause of condemnation of said ship. 2. Because the said libel states no offence against the laws of the United States. 3. Because the said libel does not aver that the excess of passengers carried or imported on said ship were so carried or imported on the lower deck of said brig, or the orlop deck thereof. 4. Because the facts stated in said libel do not constitute a violation of the passenger act of the United States of 1847, or any other law of the United States. The first, second, and fourth, are but different forms of the same general assertion, “that the libel states no offence.” The third, which is more specific, objects to the libel for want of an averment that the passengers were carried on the lower deck. An information for forfeiture of a vessel need not be more technical in its language, or specific in its description of the offence, than an indictment. As a general rule, an indictment for a statute offence is sufficient, if it describe the offence in the very words of the statute. The exceptions to this rule are, where the offences created by statute are analogous to certain common-law felonies or misdemeanors, where the precedents require certain technical language, or where special averments are necessary in the description of the particular offence, in order that the defendant may afterwards protect himself under the plea of autrefois acquit or convict. (See on this subject.United States v. Gooding, 12 "Wheaton, 474.) ; The offence created by the statute on which this libel is founded has no analogy to any particular common-law crime. If, therefore, the libel set? forth the offence in the words or DECEMBER TERM, 1856. 95 United States v. Brig Neurea. the statute which creates it, with sufficient certainty as to the time and place of its commission, it is all that is necessary to put the claimant on his defence. The object of the act in question is the protection of the health and lives of passengers from becoming a prey to the avarice of ship owners. In order to test the sufficiency of the libel, it will be necessary to set forth at length the two sections under which it was framed: The first section provides, that no master “shall take on board such vessel, at any foreign port or place, a greater num-her of passengers than in the following proportion to the space occupied by them and appropriated to their use, and unoccupied by stores of other goods not being the personal baggage of such passengers, that is to say, on the lower deck or platform, one passenger for every fourteen clear superficial feet of deck, if such vessel is not to pass within the tropics during such voyage; but if such vessel is to pass within the tropics during such voyage, then one passenger for every twenty such clear superficial feet of deck; and on the orlop deck, (if any,) one passenger for every thirty such superficial feet in all cases, with intent to bring such passengers into the United States of America, and shall leave such port, or place, with the same, and bring the same, or any number thereof, within the jurisdic-diction of the United States aforesaid, or if any such master of vessel shall take on board of his vessel, at any port or place within the jurisdiction of the United States aforesaid, any greater number of passengers than the proportions aforesaid admit, with the intent to carry the same to any foreign port or place, every such master shall be deemed guilty of a misdemeanoY, and upon conviction thereof’before any circuit or district court of the United States aforesaid, shall, for each passenger taken on board beyond the above proportions, be fined in the sum of fifty dollars, and may also be imprisoned for any term not exceeding one year: Provided, that this act shall not be construed to permit any ship or vessel to carry more than two passengers to every five tons of such ship or vessel.” “ Sec. 2. That if the passengers so taken on board such vessel, and brought into, or transported from, the United States aforesaid, shall exceed the number limited by the last section, to the number of twenty in the whole, such vessel shall be forfeited to the United States aforesaid, and be prosecuted and distributed as forfeitures are under the act to regulate duties on imports and tonnage.” Now, the libel conforms strictly to the requirements of this act. It avers, that the master “took on board the Neurea at .96 SUPREME COURT. Seymour et al. v. McCormick. Hong Kong, in China, on the 1st of June, 1854, two hundred and sixty-three passengers. That this was a greater number than in proportion to the space occupied by them, viz: “ on the lower deck or platform” one passenger for every fourteen clear superficial feet, with intent to bring said passengers to the United States. That he afterwards, viz: on the 26th day of August, did bring them on said vessel to the port of San Francisco. That the passengers so taken on board and brought into the United States did exceed the number Which could be lawfully taken, to the number of twenty in the whole, &c. The act does not require an averment that the passengers “were carried or imported on the lower deck or the orlop deck.” The libel sets forth every averment of time, place, numbers, intention, and act, in the very words of the statute. It was not necessary to specify the precise measurement of the deck, or to show by a mathematical calculation its incapacity; nor to state the sex, age, color, or nation, of the passengers; nor how many more than twenty their number exceeded the required area on deck. All these particulars were matters of evidence, which required no special averment of them to constitute a complete and technical description of the offence. The decree of the District Court is therefore reversed, and record remitted for further proceedings. William H. Seymour and Laytqn S. Morgan, Plaintiffs in • Error, v. Cyrus H. McCormick^ The act of Congress passed on the 3d of March, 1837, (5 Stat, at L.» 1^4,) provides that a patentee may enter a disclaimer, if he has included in his patent what he ' was not the inventor of; but if he recovers judgment against an infringer of his patent, he shall not be entitled to costs, unless he has entered a disclaimer for the part not invented. It also provides that if a patentee unreasonably neglects or delays to enter a disclaimer, he shall not be entitled to the benefit of the section at all. In 1845, McCormick obtained a patent for improvements in a reaping machine, in . which, after filing his specification, he claimed, amongst other things, as follows, viz: " 2d. I claim the reversed angle of the teeth of the blade, in manner described. “3d. I claim the arrangement and construction of the fingers, (or teeth for supporting the grain,) so as to form the angular spaces in front of the blade, as and for the purpose described.” ’ ■ , These two clauses are not to be read in connection with each other, but separately. The first claim, viz: for “ the reversed angle of the teeth of the blade,” not being new, and not being disclaimed, he was not entitled to costs, although he recovered a judgment for a violation of other parts of his patent. _ Under the circumstances of the case, the patentee was not guilty of unreasonable neglect or delay in making the disclaimer, which is a question of law for t e court to decide. DECEMBER TERM, 1856. 97 Seymour et dl. v. McCormick. The facts that a similar machine was in successful operation in the years 1829 and 1853, do not furnish a sufficient ground for the jury to presume that it had been in continuous operation during the intermediate time. The fifteenth section of the patent act of 1836, which allows the defendant to give in evidence that the improvement had been described in some public work anterior to the supposed discovery of the patentee, does not make the work evidence of any other fact, except that of the description of the said improvement This case came up, by writ of error, from the Circuit Court of the United States for the northern district of New York. It was a suit brought by McCormick against Seymour and Morgan, for a violation of his patent right for reaping machines, which suit was previously before this court, and is reported in 16 Howard, 480. It will be seen by reference to that case that McCormick obtained three patents, viz: in 1834, 1845, and 1847. The suit, as originally brought, included violations of the patent of 1845, as well as that of 1847; but the plaintiff, to avoid delay, proceeded then only in his claim for a violation of the patent of 1847, which consisted chiefly in giving to> the raker of the grain a convenient seat upon the machine. When the case went back under the mandate of this court, the claim was for the violation of the patent of 1845, that of 1847 being mentioned only in the declaration, and not brought before the court upon the trial, the main question being the violation of the patent of 1845. McCormick’s claim in the patent of 1845 was as follows, viz: I claim, 1st, the curved (or angled downward, for the purpose described) bearer, for supporting the blade in the manner described. 2d. I claim the reversed angle of the teeth of 'the blade, in manner described. 3d. I claim the arrangement and construction of the fingers, (or teeth for supporting the grain,) so as to form the angular spaces in front of the blade, as and for the purpose described. 4th. I claim the combination of the bow, L, and dividing iron, M, for separating the wheat in the way described. 5th. I claim setting the lower end of the reel-post, R, behind the blade, curving it at R 2, and leaning it forward at top, thereby favoring the cutting, and enabling me to brace it at top by the front brace (S) as described, which I claim in combination with the post. and fifth claims were those which were alleged to have been infringed. The defendants pleaded the general issue, and gave notice °f various inventions and publications in public works, which they designed to give in evidence in their defence. The last trial was had in October, 1854, when the plaintiff obtained vol. xix. 7 98 SUPREME COURT. Seymour et al. v. McCormick. a verdict for $7,750, and judgment was entered in June, 1855, for $10,348.30. There were twenty exceptions taken in the progress of the trial, twelve of which were as to rulings upon points of evidence, which it is not material to notice. The remaining eight were to portions of the charge of the court to the jury. The defendants, in addition to other matters of defence, alleged that the second claim was not new, and that as there had been unreasonable delay in the disclaimer of it, the plaintiff was not entitled to recover at all; and, at all events, was not entitled to recover costs. Only such portions of the charge of the court to the jury will be here inserted,।as were the subjects of .the opinion of this court. One part of the charge was as follows, viz: “ The claim in question is founded upon two parts of the patent. As the construction of that claim is' a question of law, we shall construe it for your guidance. In the fore part of the patent, we have a description of the blade, and of the bladecase, and of the cutter, and of the mode of fastening the blade and the blade-case and the cutter, and of the machinery by which the arrangement is made for the cutter to work. We have also the description of the spear-shaped fingers, and of the mode by which the cutter acts in connection with those fingers. . Then, among the claims are these: 12. I claim the reversed angle of the teeth of the blade in manner described. 3. I claim the arrangement of the construction of the fingers, (or teeth for supporting the grain,) so as to form the angular spaces in front of the blade, as and for the purpose described.’ Now, it is insisted, on the part of the learned counsel for the defendants, that this second claim is one simply for the reversed angles of the sickle-teeth of the blade. These teeth are common sickle-teeth, with their angles alternately reversed in spaces of an inch and a quarter, more or less. The defendants insist that the second claim is merely for the reversed teeth on the edge of the cutter, and that the reversing of the teeth of the common sickle as a cutter in a reaping machine was not new with the plaintiff; and that if it was new with him, he had discovered it and used it long before his patent of 1845. The defendants claim that Mobre had discovered it as early as 1837 or 1838; and it would also seem that the plaintiff had devised, and used it at a very early day after his patent of 1834 that is, the mere reversing of the teeth* But, on looking into the plaintiff’s patent more critically, we are inclined to think tna when the plaintiff says, in his second claim, ‘I claim the reversed angle of the teeth of the blade, in manner described. DECEMBER TERM, 1856. 99 Seymour et al, v. McCormick. means to claim the reversing of the angles of the teeth in the manner previously described in his patent. You will recollect that it has been shown, in the course of the trial, that in the operation of the machine, the straw comes into the acute-angled spaces on each side of the spear-shaped fingers, and that the angles of the fingers operate to hold the straws, while the sickle-teeth, being reversed, cut in both directions as the blade vibrates. The reversed teeth thus enable the patentee to avail himself of the angles on both sides of the spear-shaped fingers; whereas, if the sickle-teeth were not reversed in sections, but all ran in one direction like the teeth of the common sickle, he could use the acute angles upon only one side of the fingers, because the cutter could cut only in one direction. We are therefore inclined to think that the patentee intended to claim, by his second claim, the cutter having the angles of its teeth reversed, in connection with the angles thus formed by the peculiar shape of the fingers. And, as it is not pretended that any person invented that improvement prior to the plaintiff, the point relied on in this respect by the learned counsel for the defendant fails.” The other parts of the charge which were excepted to by the counsel for the defendants were thus specifically mentioned. To so much of the charge of the court as instructed the jury, in substance, that the plaintiff, in his patent of January 31st, 1845, did. not claim the reversed angle of the teeth of the blade as a distinct invention, but only claimed it in combination with the peculiar form of the fingers described in the same patent, the defendant’s counsel excepted. The defendant’s counsel requested the court to instruct the jury, that if they should be satisfied that Hiram Moore was the first inventor of the reversed angle of the teeth of the blade, and that the plaintiff was notified of that fact by the testimony of Moore on the trial of this cause in June, 1851, and had not yet disclaimed that invention, then, in judgment of law, he has unreasonably delayed filing his disclaimer, and the verdict should be for the defendants. The court declined so to instruct the jury, and the defend-a Tu counse^ excepted to the refusal. The defendant’s counsel further requested the court to instruct the jury, that if they should be satisfied that Hiram r°+?re Jas i^entor of the reversed angle of the teeth o tne blade, and that the plaintiff was notified of that fact by e testimony of Hiram Moore on the trial of this cause in »nine, 1851, and had not yet disclaimed that invention, then it as a question of fact for them to decide, whether the plaintiff or had not unreasonably delayed the filing of a disclaimer; 100 SUPREME COURT. Seymour et al. v. McCormick. and, jf they should come to the conclusion that there had been suchi4pireasq^ble delay, their verdict should be for the defendant#^ The co4>t rerrafol so to instruct the jury, and the defendant’s counsel excepted r<&he refusal. The defendant’s comisel requested the court to submit to the jury the^mesti^Kundd^be evidence in the case, whether the plaintiff or cml not claim, in his patent of January 31st, 1845, the revised jSsde of the teeth of the blade, independent of any combination, The court refused to i&bmit that question to the jury, and the defendant’s counsel ekcepted to the refusal. The defendant’s counsel also asked the court to instruct the jury, that, from the facts that Bell’s machine operated successfully in 1829, and that it operated well also in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, or some part of it. But the court held and charged, that there being no evidence respecting it, except at the trial of it in 1829, and the trial of it in 1853, the jury could not infer anything on the subject, and refused to charge as requested. The defendant’s counsel excepted to the refusal, and also excepted to the charge in this respect. Upon these exceptions, the case came up to this court, and was argued by Mr. Harding and Mr. Stanton for the plaintiffs in error, and by Mr. Dickerson and Mr. Johnson for the defendant. There was also a brief filed by Mr. Selden for the plaintiffs in error. It is almost impossible to convey to the reader a clear idea of the argument, because models and drawings were produced in court by the counsel on both sides. The points made, however, were the following, viz: , For the plaintiff in error. VI. The construction given in the court below, to the second claim of the patent of 1845, was erroneous. 1. The words “in manner described,” used in the second claim, refer exclusively to the description of the construction of the sickle, given in folio 155, without reference to the peculiar shape of the fingers, or to any combination whatever. They refer to the straight blade alone, with the specified positions of its teeth. M To test this construction, suppose a prosecution under tm claim, of one who used such blade as is here described, wi -fingers having parallel sides, forming right angles with e DECEMBER TERM, 1856. 101 Seymour et al. v. McCormick. line of the blade—could it be said that this claim was not infringed? If it could not, there must be error in the charge on this point. . _ ■ The construction given to this claim by the court would permit the free use by the public of the reversed angle of the sickle, when not combined with the spear-headed firmer. Can that be reconciled with the language of the. patentee, either in the description of his invention, or of the'claim based upon it ? If it can, a similar construction must be given to the third claim, which is thus rendered identical with the second, as each will then cover exactly the same combination, and the spear-head finger will be given to the public, except when combined with the straight blade and reversed angle of the teeth. We suppose the correct rule for the interpretation of patents is laid down by Mr. Curtis, in his Treatise on Patents, sec. 126. “The nature and extent of the invention claimed by the patentee, is the thing to be ascertained; and this is to be arrived at through the fair sense of the words which he has employed to describe his invention.” But that rule, even as limited or aided by the principle referred to in section 132, viz: “that a specification should be so construed Iis, consistently with the fair import of language, will make the claim co-extensive with the actual discovery,” does not relieve the plaintiff here from the distinct claim of the reversed teeth of the blade as an independent invention. This principle was well applied in the case of Haworth v. Hardcastle, (Webster’s Pat. Cases, 484, 485,) from which it was taken by Mr. Curtis. In that case it is shown, by the opinion of Chief Justice Tindal, that a forced construction of the language of the patent was required to make the claim embrace what it was alleged to embrace; but in the present case a forced construction not only of the language of the claim, but of the description of the invention, must be adopted to exclude the claim of the reversed teeth of the blade as an independent invention. Such latitude of interpretation cannot be safely allowed of a patent, or any other instrument. Neither tp k necessary f°r the protection of the rights of the patentee. ■If he made “a mistake, the patent law affords means of cor--’’ccting it; but until' corrected, the claim must be taken as it stands, whatever error may have led to it.” (Byam v. Farr, 1 Curtis, 263; Act of 1836, sec. 13.) A patent for an invention is a grant from the Government, a J construed, as we suppose, like all other grants, fairly and liberally for the accomplishment of the objects designed by it, and not otherwise. (Curtis, sec. 386.) Rights, the result of intellectual labor, are no doubt sacred; but we believe them no 102 SUPREME COURT. Seymour et al. v. McCormick. more sacred than those which are the result of more humble toil, and that the same liberality of interpretation should be extended to the title-deeds of both. That those rules of construction which are applied to patents for lands should be applied to patents for inventions. That the latter should no more be stretched beyond the fair import of their terms when the interest of the patentees would be promoted by their extension, or contracted in like degree when their interest would be promoted by their restriction, than should any other deeds or contracts. (Godson on Patents, 204, 205; Leroy v. Tatham, 14 How., p. 176.) Any more loose construction would render nugatory the statute requiring “a written description of the invention,” &c., in “full, clear, and exact terms,” and in case of any machine, that the patentee “ shall particularly specify, and point out the part, improvement, or combination, which he claims as his own invention or discovery.” (Act of 1836, sec. 6.) And it would render entirely useless the provision in section 13 of the same act, providing for the amendment of defective specifications. The reason usually given for requiring a more liberal construction of patents, than of other instruments, is, that there is a great difficulty in giving exact descriptions of inventions. Conceding the fact to be so, if may be a sufficient answer to say, that the statute requires an exact description as a condition of the grant. But, aside from the statute, it should be borne in mind, that every mechanic in the land is bound, at his peril, to decide correctly', from the specification, what every patent, touching his business, covers; and the question is, if the subject be difficult, where should the responsibility of its solution rest—upon him who makes the description of his own work, for his own interest, and with all the aids to be derived from the Patent Office, and, if he chooses, from patent agents, and men of science skilled in such matters, or from the mechanic pretending to no particular knowledge on the subject, having no interest, and often deprived of all extraordinary aids? We think that both reason and the statute demand of him, who claims the exclusive right, to define clearly the limits of his invention. It can in no case be difficult for an inventor to say, distinctly, whether he claims two or more elements singly, or merely in combination. (Evans v. Hettick, 3 Wash., p. 408; S. 0., 1 Robb, 166.) 2. The point was material. Hiram Moore used such a sickle as early as 1836, if not m 1834, and this was proved on the first trial of this case, as long ago as June, 1851. Notice of this invention by Moore was DECEMBER TERM, 1856. 103 Seymour et al. v. McCormick. given to the plaintiff as early as September, 1850. The sickle, as used by Moore in 1836, was also described by witnesses examined in October, 1851, and cross-examined by plaintiff’s counsel in this cause. The plaintiff in his history of his invention, sworn to January 1, 1848, presented to the Commissioner of Patents, for the purpose of obtaining an extension of his first patent, shows, as we think, that he did not use the blade with reversed teeth until the harvest of 1841. Under these circumstances, we insist that the plaintiff was called upon, during the three years that intervened between the trial in June, 1851, and that in October, 1854, to disclaim the invention of the reversed angle of the teeth of the blade. It was therefore a question for the jury, under section 9 of the act of March 3d, 1837, (Curtis, pp. 489, 490,) whether the plaintiff had not unreasonably neglected or delayed to enter at the Patent Office his disclaimer. To allow a patentee, under such circumstances, to designedly delay a disclaimer, would defeat the manifest object of the last proviso to section 9 above referred to, which was to compel a patentee who had inadvertently covered by his patent something to which he was not entitled, and thus wrongfully obstructed its free use, to remove the obstruction as soon as possible after the discovery of his mistake. XL The request of instructions to the jury, “that from the facts that Bell’s machine operated successfully in 1829, and that it operated well also in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, or some part of it,” should have been given; and the actual charge, “that there being no evidence respecting it, except the trial of it in 1829, and the trial of it in-1853, the jury could not infer anything on the subject” was erroneous. What the evidence was, of the use of Bell’s machine, will be found in Loudon’s Encyclopaedia of Agriculture, pp. 442 to 427, and from the testimony of Obed Hussey. We think that on this evidence, (that the machine used in England was that described by Loudon,) it was proper to submit to the jury the question as to its operation, and not to place it under the ban as an entire failure, which seems to be the effect of the charge, as it was given. If it operated well in 1829 and in 1853, which is clearly proved, and is assumed by the judge, it must certainly have been capable of operating well at any intermediate time. Whether actually used or not, is wholly immaterial. And if the machine as a whole operated well, then the divider, reel, and reel-bearer, each, operated well, and the reel 104 SUPREME COURT. Seymour et al. v. McCormick. was supported by a practically successful contrivance, which formed no impediment in the way of the divider, or of the division and separation of the grain, and on which no straws could clog, as the entire space beneath the reel-shaft is, in this machine, left unobstructed by the reel-bearer, which is horizontal some feet above the platform, and completely out of the reach of the grain. There is no difference between the reelbearer in the machine of the plaintiffs in error and that in Bell’s machine. Waters, (McCormick’s witness,) on being shown the drawing of Bell’s machine, in Loudon’s Encyclopaedia of Agriculture, says: “Asa mere manner of supporting the reel, I see no difference between the method of supporting the reel in this and the defendant’s machine.” - This prior invention of Bell’s, if the court had not substantially excluded it from the co'lisideratioii of the jury, would have furnished a complete answer to the charge of infringement of the fifth claim of McCormick’s patent of 1845. (Evans v. Hettick, 3 Wash., p. 408; S. C., 1 Robb, p. 166.) XH. It was erroneous to grant costs to the plaintiff, inasmuch as it appeared that he was not the first inventor of the reversed angle of the sickle, and had not filed a disclaimer prior to the commencement of the suit. (Act of 1837, sec. 9.) The testimony showed conclusively that Moore was the first inventor of the reversed angle of the teeth. Points for the defendant in error: Thirteenth Exception.—The description annexed to the letters patent of plaintiff describes a sickle with reversed-cut teeth, and then describes the manner in which this reversed-cut sickle operates in connection with the spear-headed fingers, “forming an acute angle between the edge of the blade and the shoulder of the spear, by which the grain is prevented from yielding to the touch of the blade.” The specification then claims “the reversed angle of the teeth of the blade in manner described.” 1. It also appeared, that ever since the date of the first reaping patent in 1834, the plaintiff had experimented with this reversed sickle edge without producing any successful result^ until he combined it in the manner described in the patent of 1845. • ,. . 2. The sickle, separate and apart from the machine, is no invention, in whatever way the teeth are cut, but when combined in the machine in the manner described, the reversed cut becomes a very valuable invention, enabling the sickle to cut itself clear each stroke; whereas, if the sickle were only one way, and the fingers were straight, it would only operate on the grain half the time. DECEMBER TERM, 1856. 105 Seymour et al. v. McCormick. 3. This part of the invention was not infringed. Fourteenth Exception.—Unreasonable neglect to file a disclaimer under the ninth section of the act of 1837, is a question of fact for the4 jury. Fifteenth Exception.—There was no evidence that Moore had ever constructed a reversed-cut sickle in the manner described in the patent of plaintiff, nor that he had ever made one in any manner which was successful—the only claim being, that in 1836-37 he had made a reversed-cut sickle, and had never seen one before, while the plaintiff had done the same thing in 1834. There was therefore no fact for the jury to find, and it would have been erroneous if the court had submitted an hypothesis unsupported by evidence for their decision. The construction of the claim also settled this point, because there was a pretence that such a manner of applying the reversed-cut sickle was old. Twentieth Exception.—The facts stated in this exception, that Bell’s machine operated successfully in 1829 and in 1853, are not evidence from which the jury could legally infer that it had operated successfully in the intermediate period, or any part, for there is no rule which raises a presumption of successful operation out of the facts assumed in the prayer, but rather the contrary, since, if it ever did succeed at all, it most probably never would have been abandoned, and then its continued use to a more recent date would have been quite as easily proved as its use at any prior date. Mr. Justice NELSOK delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States for the northern district of Kew York. The suit was brought by McCormick against Seymour and Morgan, for the infringement of a patent for improvements in i Qr.eapinJ> m?chinG granted to the plaintiff on the 31st June, 845. The improvements claimed to be infringed were—1st, a contrivance or combination of certain parts of the machinery described, for dividing the cut from the uncut grain; and 2d, he arrangement of the reel-post in the manner described, so BtrumSU^^Or^ Peel w^ou^ i^berfering with the cutting in- In the course of the trial, a question arose upon the true onstruction of the second claim in the patent, which is as fol-ows. 1 claim the reversed angle of the teeth of the blade in anner described.” This claim was not one of the issues in J°VierS^’ as 110 allegation of infringement was set forth in fenda+w^s insisted, on the part of the dents, that the claim or improvement was not new, but had 106 SUPREME COURT. Seymour et al. v. McCormick. before been discovered and in public use; and that, under the ninth section of the act of Congress passed March 3,1837, the plaintiff was not entitled to recover cost, for want of a disclaimer of the claim before suit brought; and that, if he had unreasonably neglected or delayed making the disclaimer, he was not entitled to recover at all in the case. The ground upon which the defendants insisted this claim was not new, was, that it claimed simply the reversed angle of the teeth of the blade or cutters. The court below were of opinion, that, reading the claim with reference to the specification in which the instrument was described, it was intended t6 claim the reversed angle of the teeth in connection with the spear-shaped fingers arranged for the purpose of securing the grain in the operation of the cutting—the novelty of which was not denied. The majority of the court are of opinion,-that this construction of the claim cannot be maintained, and that it is simply for the reversed angle of the cutters; and that there is error, therefore, in the judgment, in allowing the plaintiff costs. In respect to the question of unreasonable delay in making the disclaimer, as going to the whole cause of action, the court are of opinion that the granting of the patent for this improvement, together with the opinion of the court below maintaining its validity, repel any inference of unreasonable delay in correcting the claim; and that, under the circumstances, the question is one of law. This was decided in the case of the Telegraph, (15 How., 121.) The chief justice, in delivering the opinion of the court, observed that “the delay in entering it (the disclaimer) is not unreasonable, for the. objectionable claim was sanctioned by the head of the office; it has.been held to be valid by a circuit court, and differences of opinion in relation to it are found to exist among the\ justices of this court. Under such circumstances, the patentee had a right to insist upon it, and not disclaim it until the highest court to which it could be carried had pronounced its judgment.” Several other questions were raised in the case, which have been attentively considered by the court, and. have been overruled, but which it cannot be important to notice at large, with one exception, which bears upon the fifteenth section of the patent act of 1836. Bell’s reaping machine was given in evidence, in pursuance of a notice under this section, with a view to disprove the novelty of one of the plaintiff’s improvements; a description of it was read from “Loudon’s Encyclopaedia of Agriculture, published in London, England, in 1831. In addition to the description of the machine, it appeared in the work that t DECEMBER TERM, 1856. 107 Seymour et al. v. McCormick. reaper had been partially successful in September, 1828, and 1829. It also appeared, from the evidence of Mr. Hussey, that he saw it in successful operation in the harvest of 1853. The court was requested, on the trial, to instruct the jury, that from the facts that Bell’s machine operated successfully in 1829 and in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, which was refused. Without stating other grounds to justify the ruling, it is sufficient to say, that the only authority for admitting the book in evidence, is the fifteenth section of the act above mentioned. That section provides, that the defendant may plead the general issue, and give notice in writing, among other things, to defeat the patent, “that it (the improvement) had been described in some public work anterior to the supposed discovery thereof by the patentee.” The work is no evidence of the facts relied on for the purpose of laying a foundation for the inference of the jury, sought be obtained. The judgment of the court below is affirmed, with the qualification, that on the case being remitted to the court below, the taxation of costs be stricken from the record. Mr. Justice GRIER dissented. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the northern district of New York, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause, excepting that part embracing the taxation of costs in the Circuit Court, be and the same is hereby affirmed with costs. And it is further ordered and adjudged by this court, rr i8 pause be and the same is hereby remanded to the said Circuit Court, with directions to strike from the record the taxation of costs in this cause. 108 SUPREME COURT. Rogers et al. v. Steamer St. Charles et al. E. G. Rogers and L. F. Rogers, Merchants and Copartners, DOING BUSINESS UNDER THE NAME AND STYLE OF E. G. Rogers & Co., part Owners of the Cargo of the Schooner Ella; Pooley, Nicoll, & Co., Owners of the said Schooner Ella ; J. R. Brooks and F. G. Randolph, Merchants and Copartners, doing business under the name and style of Brooks & Randolph, and Thomas Sullivan, trading under THE NAME OF JOHN HURLEY & Co., PART OWNERS OF THE CARGO of the Schooner Ella-, Appellants, v. The Steamer St. Charles, James L. Day, Adam Wolf, John Geddes, John Grant, Roger A. Heirne, and Robert Geddes, Claimants. Where a steamer ran down and sunk a schooner which was at anchor in a dark and rainy night, the schooner was to blame for having no light, which, at the time of collision, had been temporarily removed for the purpose of being cleansed. * But, inasmuch as the schooner was in a place much frequented as a harbor in stormy weather, and of which the steamer was chargeable with knowledge, it was the duty of the steamer to slacken her speed on such a night, if not to have avoided the place altogether, which could easily have been done. The fact that the steamer carried the U. S. mail, is no excuse for her proceeding at such a rapid rate. The case must therefore be remanded to the Circuit Court, to apportion the loss. Where the decree was for a less sum than two thousand dollars, the appeal must be dismissed for want of jurisdiction. This was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in admiralty. It was a case of collision under the circumstances stated in the opinion of the court. It was argued by JUr. Benjamin for the appellants, and J/r. Nelson for the appellees. Mr. Benjamin made the following points: I. The undisputed facts are as follows: The Ella was at anchor; the night was dark and rainy; the hour of the collision was about half-past eleven, P. M.; the St. Charles was running at a speed of eight or nine miles an hour, at least; the collision occurred by the steamer’s running at that rate of speed against a vessel at anchor in a dark night. H. We allege that the Ella was anchored in a proper place, and out of the track usually pursued by steamers from New Orleans to Mobile or Pensacola. III. The Ella had her light out in the customary manner. This is proven by a number of witnesses, and their testimony DECEMBER TERM, 1856. 109 Rogers et al. v. Steamer St. Charles et al. is not to be overthrown by the oath of witnesses on the steamer, that they did not see it. IV. It was extreme imprudence in the St. Charles to run at her rate of speed in a dark night, in waters crowded with small vessels in a place where they usually anchor. The speed is stated by the witnesses at ten or eleven knots an hour, eight or nine knots, and ten knots. Yet this speed was not checked, although several vessels were confessedly anchored together where the Ella was, all with lights displayed. The points taken in Jfr. Nelson's brief were the following, viz: By referring to the report of the commissioner and the decree of the District Court, it will be perceived that the claim of Brooks & Randolph is for the sum of eight hundred and thirty-five dollars and five cents, and that of John Hurley & Co. thirteen hundred and sixty-eight dollars and ninety-eight cents, sums insufficient to sustain the jurisdiction of this court, and that this appeal, as far as concerns them, must be dismissed. 6 Peters, 143; Olivers. Alexander, &c. With regard'to the remaining libellants, the appellees will maintain that, upon the evidence, it is clear that the collision complained of was in no wise attributable to the fault or negligence of those navigating the steamer, but was the result of a want of care on the part of the schooner, and that the decree of the Circuit Court ought to be affirmed. Mr. Justice NELSOK delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the eastern district of the State of Louisiana, sitting in admiralty. The libel was filed in the District Court to recover the value of a quantity of merchandise on board the schooner Ella, which was sunk in a collision with the steamer on Lake Borgne, some six or eight miles east of the light-ship in Pass Mary Arm, while at anchor on the night of the 5th February, 1853. The District Court rendered a decree charging the steamer with the loss. On an appeal, the Circuit Court reversed the decree, and discussed the libel, on the ground that the schooner was in fault in not having a light in the fore-rigging, or in any other conspicuous place on the vessel, to give notice of her position to the approaching steamer. x The night was dark and rainy, and the wind blowing fresh rom north-northwest. A proper light had been hung in the ore-nggmg early m the evening, and kept there till near the 110 SUPREME COURT. Rogers et al. v. Steamer St. Charles et al. time of the collision, which happened about half-past eleven o’clock. One of the hands had taken the lamp down to wipe off the water that had collected upon the glass globe, so that it might shine brighter. While he was standing midships, wiping the lamp, he heard the approach of the steamer, and immediately placed it on the top of the cook-house. The collision soon after occurred. The fault lies in removing the lamp for a moment from the fore-rigging to midships. If it was not practicable to wipe it in the rigging, another light should have been placed there on its removal. The time of the removal may be, as happened in this case, the instant when the presence of the light was most needed to give warning to the vessel approaching. All the hands examined who were on board the steamer deny that-they saw*any light at the time on the schooner. We agree, therefore, with the court below, that the schooner was in fault. But it is insisted, on the part of the appellants, that the steamer was also in fault on account of her rate of speed at the time, regard being had to the darkness of the night and the character of the channel she was navigating. The schooner, on coming out of the Pass Mary Ann, towards evening met a strong head wind and swell of the lake, and after pursuing her course some four or five miles, anchored under Cat Island. There were several other vessels at anchor at the time in that vicinity. Some of the witnesses state that the place is used as a harbor for schooner^ and other vessels navigating the lake in rough weather, as it is somewhat sheltered from the winds; and the number of vessels at anchor in the neighborhood, at the time of the collision, would seem to confirm this statement, and there is no evidence in the case to the contrary. There is conflicting evidence on a point made by the appellant, that the steamer was out of the direct and usual course of steamers from Pass Mary Ann to Mobile. The weight of it is, that this course was a mile and a half or two miles north of the place where the schooner lay. But we do not attach much influence to this fact, as in the open lake there was no very fixed track of these vessels within the limit mentioned. 'There is also some little discrepancy of the witnesses as to the darkness of the night. But the clear weight of it is, that at the time of the collision it was very dark and rainy, and the wind blowing fresh. The witnesses on the part of the steamer are very explicit on this part of the case. The pilot says, the night was very dark, and drizzling rain. The captain, that the night was DECEMBER TERM, 1856. Ill Rogers et al. v. Steamer St. Chdrles et al. dark and cloudy, and the wind blowing briskly. The engineer, that the night was so dark, a vessel of the size of the schooner could not be seen at all till upon her, without a light; and yet he says there was nothing in the weather to prevent her running at her usual speed. The steamer was going, at the time of the collision, at the rate of from nine to ten miles an hour. The pilot says, at her usual rate of speed, or at the rate of eight or nine knots. The engineer, not exceeding the usual rate of speed, which, it appears, averages about ten miles. The mate states, that the speed at the time was between ten and eleven miles. Now, considering the darkness of the night and state of the weather, and that the steamer was navigating a channel where she was accustomed to meet sailing vessels engaged in-the coasting trade between Mobile and New Orleans and the intermediate ports, we cannot resist the conclusion that the rate of speed above stated was too great for prudent and safe navigation; and this, whether we regard the security of the passengers on board of her, or the reasonable protection of other vessels navigating the same channel; and especially under the circumstances of this case, in which she was bound to know that the place where this schooner lay was a place to • which vessels in rough and unpropitious weather, navigating this channel, were accustomed to resort for safety. The case presented is much stronger against the steamer than that of casually meeting the schooner in the open waters of the lake. She was at anchor with other vessels in an accustomed place of security and protection against adverse winds and weather, familiar to all persons engaged in navigating these waters. The place and weather, thefefore, should have admonished the steamer to extreme care and caution, and it is, perhaps, not too much to say, should have led to the adoption of a course that would, have avoided the locality altogether. The weight of the evidence is, even if she had pursued the most direct course from Pass Mary Ann to Mobile, it would have had this effect: she would have passed north of this cluster of vessels anchored under the shelter of the island. Neither is it at all improbable, if the speed of the steamer had been slackened, and she had been moving at a reduced rate, with the care and caution required by the state of the weather, that she would have seen the light on the schooner 111 time to have avoided her. The proof is full that there was a light on board from the time she cast anchor till the happening of the disaster. But, at the critical moment, it was in the hand of the seaman at midships, instead of at a conspicuous place m the rigging. The light must have been in some de 112 SUPREME COURT. Rogers et al. n. Steamer St. Charles et al. gree visible, as all the sails of the vessel were furled, and was placed on the top of the cook-house as soon as the wet and moisture were wiped from the glass. The admiralty in England have repeatedly condemned vessels holding a rate of speed in a dark night, under circumstances like the present, and so did this court in the case of the steamer New Jersey, (10 How., 568.) The Rose, 2 Wm. Rob., If The Virgil, lb., 201. It has been urged, on behalf of the steamer, that she carried the mail, and that a given rate of speed was necessary in order to fulfil her contract with the Government. This defence has been urged in similar and analogous cases in England, but has been disregarded, and indeed must be, unless we regard the interest and convenience of the arrival of an early mail more important than the reasonable protection of the lives and property of our citizens. Having arrived at the conclusion that the steamer was in fault, the case is one for the apportionment of the loss. The decree must therefore be reversed, and the case remitted to the court below, for the purpose of carrying this apportionment into effect. Pooley, Nicoll, & Co., "| t>. > The Steamer St*. Charles.) The decree of the court below is reversed, for the reasons given in the case of E. G. Rogers & Co. v. the same steamer, and remitted to the court for an apportionment of the loss. Brooks & Randolph 1 . v. > The Steamer St. Charles. J The appeal in this case is dismissed for want the decree in the court below being for a sum less than $2,000. John Hurley & Co. 1 v. 1 The Steamer St. Charles. J The appeal is dismissed for want of jurisdiction; the decree of the court below being for a sum less than $2,000. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Louisiana, and was argued by CO^P8® ' ,, consideration whereof, it is the opinion of this c°ur^ ,, , appeals of Brooks & Randolph, and Hurley & Co., sho DECEMBER TERM, 1856. 113 Coiron et al. v. Millaudon et al. dismissed for the want of jurisdiction, on the ground that the amount in controversy in each of the said cases is less than $2,000; and it is also the opinion of this court that the steamer St. Charles was in fault, and that the decree of the said Circuit Court in the cases of E. G. Rogers & Co., and Pooley, Nicoll, & Co., should be reversed, and the cause remanded for an apportionment of the loss on these two appeals. Whereupon, it is now here ordered, adjudged, and decreed, by this court, that the appeals of Brooks & Randolph, and of Hurley & Co., be and the same are hereby dismissed for the want of jurisdiction; and that the decreee of the said Circuit Court in the cases of E. G. Rogers & Co., and Pooley, Nicoll, & Co.,1 be and the same are hereby reversed with costs; and that this cause be and the same is hereby remanded to the said Circuit Court for further proceedings to be had therein in conformity to the opinion of this court, and as to law and justice shall appertain. Pierre Felix Coiron and Marie J. T. Coiron, a Mtnor, BY HER NEXT FRIEND, PlERRE FELIX COIRON, APPELLANTS, V. Laurent Millaudon, Edward Shiff, Syndics, &c., of Alexander Lessees, et al. Where a sale of mortgaged property in Louisiana was made under proceedings in insolvency, and the heirs of the insolvent filed a bill to set aside the sale on the ground of irregularity, it was necessary to make the mortgagees parties. They had been paid their share of the purchase money, and had an interest in upholding the sale. The fact that such persons are beyond the jurisdiction of the court is not a sufficient reason for omitting to make them parties. Neither the act of Congress nor the 47th rule of this court enables the Circuit Court to make a decree in a suit in the absence of a party whose rights must necessarily be affected by such decree, and the objection may be taken at any time upon the hearing or in the appellate court. This was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting as a court of equity. & The facts are sufficiently stated in the opinion of the court It was submitted on a printed argument by Mr. Hunt and Mr. Ogden for the appellants, and argued by Mr. Benjamin for . uPon which the case was decided was thus stated, by Mr. Benjamin: an absence °f the parties indispensable in the suit. Ihe complainants seek to set aside a sale made by the vol. xix. 8 J 114 SUPREME COURT. Coiron et al. v. Millaudon et al. creditors of Coiron, through the agency of their syndic, to Millaudon and Lesseps. In order to do this, both vendor and vendees must be parties. Shields v. Barrow, 17 Howard, 131. It is obvious, that if the sale complained of be set aside, the effect would be to entitle the defendants to recover back their money from the syndic or the creditors, and to entitle the creditors to take back the property, and have it regularly sold in satisfaction of their claims. Mr. Justice NEL SOK delivered the opinion of the court. This is an appeal from a decree of the district judge, sitting in the Circuit Court of the United' States for the eastern district of Louisiana. The bill was filed in the court below, by two of the heirs of J. J. Coiron, against Alexander Lesseps, Laurent Millaudon, and others, to set aside a sale of a plantation and slaves to the two defendants named, in 1834, in pursuance of proceedings in a case of insolvency before a parish court in the city of Kew Orleans. The father of the complainants, having become insolvent in 1833, applied to the court for liberty to surrender his property for the benefit of his creditors, and that in the mean time all proceedings against his person or property might be stayed, which application was granted, and the surrender of his property accepted. Theodore Kicolet was appointed syndic of the creditors, and such proceedings were had, that a sale of the plantation and slaves was directed in March, 1834, when the two defendants became the purchasers. The inventory of the debts of the insolvent, which accompanied his application to the parish court, exceeded $177,000, and of his assets, $137,000. The assets sold for some $77,000; and after satisfying the charges and expenses of the proceedings, the balance was distributed among the creditors under the direction of the court.. This amount, some $60,000, fyll short of satisfying the claims of the two principal creditors, Van Brugh Livingston, and Harriet, his wife, of Kew York, and the firm of Kicolet & Co., of Kew Orleans, which were secured upon the estate by mortgages. The object of this suit is to set aside the sale on the ground of irregularities in the insolvent proceedings, which are set forth in detail in the bill. The court below, after hearing the case upon the pleadings and proofs, decreed against the complainants and dismissed the bill. , The record is quite voluminous, but we have stated enough DECEMBER TERM, 1856. 115 Coiron et al. v. Millaudon et al. of the facts to present the questions upon which we shall dispose of the case. According to the law of Louisiana, on a surrender "by the insolvent of his property for the benefit of creditors, the estate vests in the latter sub modo, and is disposed of by them through the agency of the syndic, under the supervision and control of the court before whom the proceedings take place. 2 Rob. R., 193, 194. They appoint the syndic and fix the terms and conditions of the sale, and have the charge of the estate in the mean time between the surrender and final disposition. The creditors, therefore, are the parties chiefly concerned in these proceedings; and as it respects those to whom the proceeds of the estate have been distributed, they are directly interested in upholding the sale; for, if it is set aside, and the proceedings declared a nullity, they would be liable to refund the share of the purchase money each one had received in the distribution. A court of equity, in setting aside a deed of a purchaser upon grounds other than positive fraud on his part, sets it aside upon terms, and requires a return of the purchase money, or that the conveyance stand as a security for its payment. 1 J. Ch. R., 478; 4 J. R., 536, 598, 599. This constitutes the essential difference ■'between relief in equity and that afforded in a court of law. A court of law can hold no middle course. The entire claim of each party must rest, and be determined at law, on the single point of the validity of the deed; but it is the ordinary case in the former court, that a deed not absolutely void, yet, under the circumstances, inequitable as between the parties, may be set aside upon terms. Nicolet & Co., and Van Brugh Livingston and wife, the mortgage creditors, or their legal representatives, were therefore necessary parties to the bill, a's any decree made in the case disturbing the sale may seriously affect their interests. This objection has been anticipated in the bill, and an averment made that these parties were out of the jurisdiction of the court. But it is well settled, that neither the act of Congress of 1839, (5 U. S. Stat, at Large, 321, sec. 1,) nor the 47th rule of this court, enables the Circuit Court to make a decree in a suit in the absence of a party whose rights must necessarily be affected by such decree, and that the objection may be taken at any time upon the hearing, or in the appellate C°w ’ ^ow’’ 13$ j 1 Peters, 299. JVv e think the decision of the court below was right in dismissing the bill, and therefore affirm the decree. 116 SUPREME COURT. Long et al. v. O'Fallon. Reuben L. Long, John S. Penrise, and Amelia Penrise, his Wife, and Alice Penrise, by hfr Guardian, John S. Penrise, Complainants and Appellants, v. John O’Fallon. Where an administrator sells property which had been conveyed to him for the purpose of securing a debt due to his intestate’s estate, his failure to account for the proceeds amounts to a devastavit, and renders himself and his sureties upon his administration bond liable; but it does not entitle the heirs to claim the property from a purchaser in good faith for a valuable consideration. Nor can the heirs, in such a case, claim land which has been taken up by the administrator .as vacant land, and for which he obtained a patent from the United States, although such land was included in the conveyance to him. Moreover, the facts necessary to sustain the plea of the statute of limitations are proved on the part of the defendant in this case, and no charge in the bill discloses a case of exception from its operation. This was an appeal from the Circuit Court of the United States for the district of Missouri, sitting as a court of equity. It was a bill filed by a part of the heirs of Gabriel Long, (Clara V. Long, one of the heirs, having been left out as a complainant, oh account of her residence in Missouri, but made a defendant to an amended bill, after a demurrer had been sustained upon this ground,) under the following circumstances: In 1799, the Spanish Government surveyed for Antoine Morin a tract of land, fronting oh the Mississippi river, supposed to be sixteen arpens in front, having a depth of forty arpens, which, in February, 1809, was confirmed to his widow and heirs, he being then dead. The survey showing, however, that the tract contained more than 640 arpens, that quantity only was confirmed; and the commissioners directed another survey to be made, so as to throw off the surplus on the western side of the tract. In October, 1809, the Morins conveyed the property to Elijah Smith, who, in September, 1812, conveyed it to Alexander McNair. In 1817, the survey ordered by the board was made, but the surplus quantity was thrown off from the south side of. the tract instead of the west, by which means fractional sections 26, 27, 33, 34, and 35, of townships 46, range 7 east, were reunited to the body of public lands. In 1820, McNair, being indebted to Gabriel Long, mortgaged to him a tract of one hundred and twenty arpens of land, situated on the river Gingrass, and fronting on the river Mississippi, and bounded southwardly by land formerly owned by Clement B. Penrose, northwardly by the land of Joseph Morin, and westwardly by the land now or .formerly owned by Joseph Brazeau, being the same land which he had purchased from DECEMBER TERM, 1856. 117 Long et al. v. O’Fallon. Elijah Smith. The land was three arpens in front, by forty in depth, and was nearly or quite identical with the land thrown out, as above mentioned. In October, 1822, Gabriel Long died. In December, 1822, Alexander McAllister took out letters of administration upon the estate of Long, and on the 19th of February, 1823, commenced suit to foreclose the mortgage against McNair, and obtained a decree of foreclosure in October, 1823, and an order to sell the mortgaged premises. Although somewhat in advance of the chronological order of events, it is proper here to introduce the following admission of counsel, which was filed in the cause: “It is admitted in this case that Catharine Dodge was the aunt of Mrs. McNair, wife of Alexander McNair. It is admitted that in the inventory of Alexander McAllister, filed by him as administrator of Gabriel Long, deceased, in the county court of St. Louis county, said McAllister charged himself with the following debts, as due to said Long’s estate from Alexander McNair, viz: note on McNair, $1,889, drawing 10 per cent.; note on McNair, $100; debt on McNair, $340; in all, $2,329. That in the settlement of said McAllister, as such administrator, in said court, at the February term, 1828, he was credited by the same amounts charged against him in inventory, the same being desperate as he stated in said settlement.” . It is admitted that Mrs. Long, wife of Gabriel Long, after his death, married Alexander McAllister; and after his death, she married Abel Rathbone Corbin, and she is still living. To resume the thread of the narrative. In March, 1824, Catharine Dodge took out a patent from the United States for fractional sections 34 and 26, making together a little upwards of 128 acres, and being a part of the land thrown out, as above mentioned, and included in. the mortgage from McNair to Long. In August, 1824, the sale of the mortgaged premises took place under a decree of the court, as above mentioned, when McAllister became the purchaser for the sum of one hundred and twenty dollars. . In September, 1824, Catharine Dodge united with McNair m executing a deed, by way of mortgage to McAllister, in order to secure the payment of two thousand six hundred and fifty dollars, admitted to be due from McNair to McAllister, as the administrator of Long. This deed gave to McAllis-^^26 ^°Wer se^ Prem^ses> : fractional sections 34 In January, 1828, McAllister entered in his own right* fractional sections 27, 33, and 35, containing in the whole about 118 SUPREME COURT. Long et al. v. O’ Fallon. nine acres, and being the residue' of the lands thrown out by the survey. On the 10th of August, 1828, Mrs. Dodge, in consideration of the debt due by McNair to McAllister, secured by the mortgage, above referred to, released to McAllister all her right, title, and interest, in the above premises. In February, 1833, McAllister and wife conveyed to John O’Fallon, for the consideration of twelve hundred dollars, all that tract of land lying on or near the river Gingrass, in the county of St. Louis, being three arpens in front, by forty arpens, more or less, in depth, forming a superficies of one hundred and forty arpens, without recourse, however, to the grantors for any defect of title. This was the same land which had been mortgaged by McNair, purchased by McAllister at public sale, and conveyed to him (in part) by Mrs. Dodge. O’Fallon had previously gone into possession of the premises, about the year 1830, under an agreement with McAllister. In December, 1852, the heirs of Gabriel Long, residing in California and Mississippi, filed their bill against O’Fallon, on the equity side of the Circuit Court of the United States for Missouri. The bill alleged that McAllister, being administrator of Gabriel Long, and purchasing the mortgaged properly, had thereby become a trustee 'for the use of the heirs; that the deed of conveyance, executed by Catharine Dodge, to secure debts due to McAllister and the estate of Long, enured to the benefit of the heirs of Long, as did also the patent for the three fractional sections taken out in his own name by McAllister; that he had never accounted with the heirs for the $120, which was the purchase money of the mortgaged property; that O’Fallon was a purchaser with notice, in fact and in law, and that the sale made to him by McAllister and wife was fraudulent in fact and in law; and that thereby O’Fallon became a trustee for the heirs of Long to the same extent that McAllister was bound to them. The defendant, O’Fallon, filed his answer, in which, amongst other matters, he denied -that he was a purchaser with potice, asserting, on the contrary, that when he purchased said real estate described in the two deeds made by said McAllister to this defendant—one in August, 1828, and the other in February, 1833—and paid the consideration expressed in said two deeds to said McAllister, this defendant had never heard the title of said McAllister, or his right to sell said real estate, questioned ; said McAllister always claimed and treated it as his own, and in his own right. If this defendant has had any notice or intimation from any one that said McAllister’s title DECEMBER TERM, 1856. 119 Long et al. v. O'Fallon. or right to sell said real estate was questioned or questionable, or that he held or claimed it only in trust for other parties, and not in his own individual right, this defendant would not have purchased said real estate, or had anything to do with it, and certainly this defendant would not have paid the consideration for said real estate that he did, if the title thereto, or right to sell, had been questioned or questionable; for the said price or consideration paid for said real estate to said McAllister, by this defendant, was equal to the cash value thereof at that time. The defendant further alleged that he had been in continuous possession, in good faith, under his claim of title, for twenty years and upwards, next before the bill was filed, and set that up as a bar to the claim of the complainants. After various proceedings in the case, it came up for argument in April, 1855, when the court dismissed the bill with costs. The complainants appealed to this court. It was argued by Mr. Glover for the appellants, and Mr. Geyer for the appellee. The following notice of the points, on behalf of the appellants is taken from the brief of Mr. Glover: 1. The case of the appellants rests upon the doctrine of resulting trusts, aided by that of fiduciary relation. An admin-istrator who purchases land under a judgment in favor of the intestate, holds it as a trustee. It must be intended that an administrator so purchasing, does so at the request and for the benefit of the heirs. He is a trustee for the heirs, and cannot divest himself of the trust. And the cestui que trust may take the land at his election. Fellows v. Fellows, 4 Cowen, 698, 704, 706. One Hedden purchased at an executor’s sale part of the property sold, for the separate use of the executor’s wife. The purchase was at public auction, and for a fair price. that no fraud or unfairness need be shown, but that r+LSa e v°id at the pleasure of the persons interested, and t ™ y said so the sale must be set aside. Davon vt Fannins, 2 J. Ch. R., 252. 5 We have been unable to find any one well-considered case o sustain the right of an executor to become the purchaser of property which he represents, or any portion of it, even at a air price at public sale, without fraud. Michond v. Girod, 4 T^ard, 557. This case states all the reasons of the rule. Where lands in the hands of a party stand affected with a rust, and the person in whose hands they so stood has sold 120 SUPREME COURT. Long et al. v. O'Fallon. them to a third person, the cestui que trust has the right to follow the lands into the hands of any one hut an innocent purchaser. And the trustee cannot deprive him of this right. Oliver v. Piatt, 3 Howard, 401. Meyer conveyed his property in trust to pay debts. Part of it was sold under an execution in the control of the trustee, and bought by him. Held, the purchaser took in trust for the beneficiary. Harrison, administrator, et al., v. Mock et al., 10 Ala. R., 185. If an agent discovers a defect in the title to the land of his principal, he cannot misuse it to acquire a title to it himself. Ringo v. Burnes, 10 Peters, 281. Where the trustee aliens the land pendente lite, the cestui que trust may elect to take the land,' or the money it sold for. Murray v. Lylburn, 2 J. Ch. R., 422. The cestui que trust may affirm the sale, and take the property, or have a resale. Thorp et al. v. McCullum et al., 1 Gilman Ill. R., 614, z It seems the beneficiary has three courses he may pursue in his election. 1. He may set aside the purchase, and have a resale. 2. He may affirm it, and take the property as his own. 3. He may take the money. That the cestui que trust has this election only shows that he owns the property. 2. That O’Fallon knew how McAllister came by the prop-ty, and that he held it in trust for the persons interested in the estate • of Gabriel Long; they having paid the purchasemoney is manifest from the title-papers themselves. 3. The article of agreement between O’Fallon and' McAllister, dated August 12, 1828, recites that on the 9th August, 1828, McAllister relinquished to O’Fallon the title procured from Mrs. Dodge in August, 1828. This date of the “9th” is a manifest mistake, because the deed of Mrs. Dodge, in August, 1828, was made 10th of August, and could not therefore have been recited by a conveyance on the 9th. Besides, this part of the instrument was no evidence against the plaintiffs. The agreement was valid to show a sale to O’Fallon on the 12th, but not evidence of the recited matter against the appellants. 4. On the sale to McAllister, in 1824, the property in dispute was held by him in trust. On the 10th August, 1828, after the release of Mrs. Dodge, the property in dispute was held by him in trust. And if he did, as recited in the instrument of August 12,1828, sell the interest gotten of Mrs. Dodge, on the 10th, to O’Fallon, he had no power to divest the title of Long’s heirs thereby. DECEMBER TERM, 1856. 121 Long et al. v. O'Fallon. 5. The entries by McAllister, in January, 1828, were in fraud of the rights of the heirs of Long, and enured to their benefit. It is impossible to conceive the ground on which the Circuit Court dismissed the bill, as to these entries. McAllister, who held the property as administrator, and who in this way learned of the defects in the title, went into the market and purchased up, on his own mere'motion, an outstanding title to the trust estate. See Hoffman’s Ch. R., 195; De Bevoix v. Sandford, 5 Vesey, 678; 3 Mer., 200; 13 Vesey, 601. 6. The property when vested in McAllister being in equity, the property of Long’s heirs could only .be sold by proceedings in the Probate Court, in conformity with the statute law. See Revised Code of Missouri, 1825, vol. 1, pp. 106, 40, 41. 7. The statute of limitations is not applicable to the case, or if it is, it did not begin to run till the deed to O’Fallon in 1833, which was the first repudiation of the trust by McAllister. Jfr. G-eyer, for the defendant in error, made the following points: I. The sale in August, 1824, under the decree of the St. Louis Circuit Court, was not a sale of any property belonging to the estate of Gabriel Long, nor was it a sale made by the administrator, nor under his direction or control; and therefore the purchase by the administrator was not a breach of any trust, nor did he become, in fact or law, a trustee for the heirs of Gabriel Lona*. According to the laws of Missouri, Gabriel Long had' no estate in the land embraced by the mortgage deed. The land was held as a security for the debt, and could be subject to sale only as the property of the mortgagor, and in the mode adopted by the administrator—by decree of a court—the sale to be made by the sheriff. An administrator may buy goods of his intestate at sheriff’s sale, (Haddix v. Haddix, 5 Lett., 204;} and so at an open and public sale, without fraud, an executor may purchase the property of his testator. Drayton v". Drayton, 1 Dessess., 567; Anderson v. Fox, 2 Hen. and M., 245; McKey v. Young, 4 Hen. and M., 430; Hudson v. Hudson, 5 Hen. and M., 180. A person who had married a widow and administratrix, and was acting guardian of the minor heirs, was held to have a right to purchase the estate at full price at public sale directed by the court for the purpose of partition. McGuire v. McGowen, 4 Desaces, 486. The case of Fillows v. Fillows (4 Cowen, 698, 704, 706) has 122 SUPREME COURT. Long et al. v. O'Fallon. been cited as authority to sustain the position of the appellant, that an administrator, who purchases land under a judgment in favor of the intestate, holds it as a trustee for the heirs, and cannot divest himself of the trust; and there is a marginal note to that effect, but it is not warranted by the opinion. In that case, the complainants sued as administrators, and set up the interest in the property as such, against persons not heirs, who demurred to the bill on the ground that the complainants came in two capacities, a part of the property having been purchased by them at sheriff’s sale, under a judgment m favor of their intestate. The court regarded the complainants as having averred substantially that they purchased as administrators, and it was not for the defendants to question their authority; and Judge Southerland said, “It is to be presumed, at this stage of the cause, that they purchased at the request and for the benefit of the hejrs, and a court of equity would compel them to account to the estate.” The right of an executor or administrator to purchase on his own account the property of his testator or intestate, at a judicial sale under the order or process of a court, has been questioned; but there is no adjudged case, it js believed, in which it has been held that an executor or administrator may not purchase property of others at a public judicial sale, under a decree, judgment, or process, in favor of the testator or intestate, or of his personal representatives. . U. Ko estate or interest in the land in controversy was vested in the heirs of Gabriel Long by virtue of the tripartite deed of the 1st September, 1824, nor by the deed of Catherine Dodge to Alexander McAllister, of 10th of August, 1828. The first of these deeds is a mortgage in trust for sale; under it, McAllister, as mortgagee, held the land to secure the debts due to the estate of Long, wTith power, in case of default in the payments stipulated for, to make sale absolutely, at public on private sale, of the land embraced; the proceeds to be applied first to the payment of the principal and interest of the debt, and the residue, if any, to be paid over to Mrs. Dodge—McAllister held the estate as trustee for Mrs. Dodge? subject to the debt due from McKair to Long’s estate. The personal representatives of Long, not his heirs, held the security for the debt, and were entitled to enforce it. Before the execution of the second deed, McAllister made a settlement of his accounts, as administrator of Gabriel Long s estate, and was credited with the amount of McNair s debts, as desperate, so that he was no longer charged therewith as administrator; but undoubtedly, if he afterwards received anything on account of that debt, by the sale of mortgage prop DECEMBER TERM, 1856. 123 Long el al. v. O'Fallon. erty or otherwise, he was bound to account for it as administrator, if received while he continued to act as such, or with his successor, if he had ceased to be administrator. The land continued to be held as a. security for the debt of McNair, when Mrs. Dodge conveyed to McAllister her right to redeem the land which she had purchased from the united States, and mortgaged by the deed of 1st of September, 1824. McNair’s right to redeem, however, still remained until the sale made to O’Fallon. There is- no allegation or evidence that McAllister applied any of the assets of the estate of his intestate to the purchase of any part of the land in question, either at the sheriff’s sale in 1824, or in consideration of the deeds of Mrs. Dodge in 1824 and 1828; the accounts of the administrator, McAllister, exhibit no charge against the estate for anything paid on account of the land. At the time O’Fallon became the purchaser, McAllister held in his own right all the estate and interest of McNair and Mrs. Dodge in the land, subject only to the encumbrance created by the tripartite deed of 1st September, 1824, under which he had a complete power of disposition, but was bound to apply so much of the proceeds of any sale as was necessary to the payment of the debt of McNair to Long’s estate. That is, at most, the land was subject to a mortgage to secure the debt to Long, which enured to the personal representative of Long, and not an estate held by McAllister in trust for the heirs. If, therefore, the defendant, O’Fallon, could be regarded as holding the land precisely as it was held by McAllister, he could be required only to satisfy the debt due from McNair to Long’s estate, or sell the land and apply the proceeds to the payment; but he does not hold the estate in the land in trust for the heirs of Long; the cause of action, if any, against him, is in the personal representative of Gabriel Long. And, even if the heirs might prosecute an action in a court of equity for a money demand, the interest of Alton Long was not assigned by his deed to Penrise; and the bill was properly dismissed, because the heirs are not the proper parties complainant, and because a part of them only are made parties. The sale to O’Fallon having been fairly made, and a full consideration paid, the title vested in him discharged of the encumbrance in favor of the personal representative of Gabriel Dong created by the deed of 1st September, 1824. Ihe sale was made after the last settlement by McAllister ot ms accounts as administrator with the County Court of St. ■Lioimi, and it does not appear whether he afterwards accounted or the proceeds of the sale or not. The bill contains no alle 124 SUPREME COURT. Long et al. v. O'Fallon. gation that he failed to account, and it was not put in issue in the cause. But it is clear that McAllister was authorized to make the sale to secure the money and make the conveyance, and there was no obligation on the part of the purchaser to see that he accounted for the proceeds as administrator of the estate of Long. Grant v. Hooke, 13 Sergt. and Rawle, 262; 2 Des., 378 ; Field v. Sheiffelin, 7 John. Ch. R., 160. Mr. Justice CAMPBELL delivered the opinion of the court. The appellants, a part of the heirs of Gabriel Long, deceased, instituted this suit in the Circuit Court against the defendant, to obtain a decree for a title to, and for an account for the rents and profits of, a parcel of land in St. Louis, Missouri. The case made in the record is, that in 1820, Alexander McNair and wife executed a mortgage deed for the land in controversy to Gabriel Long, to secure debt not then due. Before its payment, Long died, and Alexander McAllister was appointed to administer his estate. In 1823, this administrator obtained a decree in the Circuit Court of St. Louis county, for a foreclosure of the mortgage, and an order of sale, to be executed after a limited period. This order was executed in August, 1824, by a public sale of the property to McAllister, for a small portion of the debt. The title of McNair before this sale had entirely failed. The Spanish concession and survey, under which he claimed the land, had been surveyed and located by the officers of the land office so as to exclude this parcel, and, in consequence, it was subdivided into five fractional sections, and was subject to sale.as public land. At the date of the sale by the sheriff, two of these fractions, embracing the whole tract except nine acres, were claimed by Catherine Dodge, under a patent from the United States, and the remaining sections were patented to McAllister, as a purchaser, by entry at the land office in 1828. In September, 1822, Catherine Dodge and McNair agreed to secure the debt due to the estate of Long, by a mortgage in favor of McAllister. The debt was divided into three unequal instalments, which were to be paid within three years by McNair; and Mrs. Dodge conveyed her two fractional sections, in mortgage, with a power of sale in the event of a default, to secure the performance of the obligation. McNair failed to make the payments, and in 1828 Mrs. Dodge released to McAllister her equity of redemption and her claim upon him for any surplus from the mortgage, for the consideration of ond dollar. . . In 1828, the defendant purchased the five fractional sections DECEMBER TERM, 1856. 125 Long et al. v. O'Fallon. from McAllister, for a fair price, and has been in the undisputed possession of the land since 1830. The defendant pleads the statute of limitations in bar of the recovery. The opinion of the court is, that the conveyances of Mrs. Dodge to McAllister did not invest the heirs of Gabriel Long with an equitable estate, or a particular lien on the property described in them. Their primary object was to create a security, or a fund, for the payment of the debt of McNair, and to enable McAllister to dispose of the land in case of its nonpayment, at his discretion, for its discharge. The release executed in 1828 was not made to extinguish any portion of the debt, nor did it remove the obligation of McAllister to convert the security into pecuniary assets. His sale of the land was. a legitimate exercise of the powers of an administrator and trustee, and his vendee was not obliged to look to the application of the purchase-money. (Tyrrell v. Morris, Dev. and Batt. Ch. R., 559.) His failure to account was a devastavit, for which he and his sureties are liable on their official bond at law; and probably, if the land had been retained by him, or any person claiming as a volunteer under him, a court of equity might have permitted the heirs to accept the property, instead of the debt due to the estate. But, in the present instance, the defendant is a purchaser in good faith, and is entitled to hold the property, exempt from the claims of the plaintiffs. (Rayner v. Pearsall, 3 John. Ch. R., 578.) t Nor can the title of the defendant to the three small fractional sections entered by McAllister at the land office, and which were purchased from him by the defendant after his patent from the United States had been issued, be successfully questioned by the plaintiffs. The estate conveyed to Long by McNair, in mortgage, was known to be without value in 1824. McAllister did not acquire by the sheriff’s deed any interest in the land, or profit from his purchase. The land was then a °f the public domain, and subject to entry at the land office, under the laws of the United States. Without considering whether there was any relation between this administrator and these heirs, which precluded the former to purchase the land for his own account, under the principles of equity, we are satisfied that the heirs are not entitled to pursue their cl^im against a purchaser for value, who has not been guilty of fraud or collusion. The facts necessary to sustain the plea of the statute of lim-i ations qre proved on the part of the defendant, and no charge 7,e discloses case of exception from its operation, (xiattv. vattier and others, 9 Pet., 405.) Decree of the Circuit Court affirmed. 126 SUPREME COURT. Baker et al. n. Nachtrieb. Romelius L. Baker and Jacob Henrici, Trustees of the Harmony Society of Beaver County, Pennsylvania, and Others, Appellants, v. Joshua Nachtrieb. The Harmony Society was established upon the basis of a community of property, and one of the articles of association provided, that if any member withdrew from it, he should not claim a share in the property, but should only receive, as a donation, such sum as the society chose to give. One of the members withdrew, and received the sum of two hundred dollars, as a donation, for which he gave a receipt, and acknowledged that he had withdrawn from the society, and ceased to be a member thereof. A bill was then filed by him, claiming a share of the property, upon the ground that he had been unjustly excluded from the society by combination and covin, and evidence offered to show that he had been compelled to leave the society by violence and harsh treatment. The evidence upon this subject related to a time antecedent to the date of the receipt. There was no charge in the bill impeaching the receipt, or the settlement made at its date. Held, that under the contract, the settlement was conclusive, unless impeached by the bill. This was an appeal from the Circuit Court of the United States for the western district of Pennsylvania, sitting as a court of equity. It was a bill filed by Nachtrieb, under the circumstances mentioned in the opinion of the court. The Circuit Court, alter having referred the case to a master to state an account, decreed that the trustees should pay to Nachtrieb the sum of $3,890; from which decree the trustees appealed to this court. It was argued by Jfr. Stanberry and Mr. Loomis for the appellants, and by Mr. Stanton for the appellee. Mr. Justice CAMPBELL delivered the opinion of the.court. The appellee, who describes himself as a member in the common and joint-stock association for mutual benefit and advantage, and for the mutual acquisition and enjoyment of property, called the “Harmony Society,” filed a bill in the Circuit Court against the appellants, as the trustees and managers of its business and estate. The object of the bill is to obtain for the plaintiff a decree for an account of the share to which he is entitled.in the property of the society, or compensation for his labor and service during the time he was a member. In 1819 he became associated vhth George Rapp and others, in the Harmony Society in Indiana, and remained with them there, or at Economy, in Beaver county, Pennsylvania, till 1846. He devoted his time, skill, attention, and care, during that period, to the increase of the wealth and the promotion of the interest of the society. DECEMBER TERM, 1856. 127 Baker et al. v. Nachtrieb. These facts, are admitted in the pleadings of either party. The bill avers, that in 1846, the plaintiff being then forty-eight years old, and worn out with years and labor for said association, was wrongfully and unjustly excluded from it, and deprived of any share in its property, benefits, or advantages, by the combination and covin of George Rapp and his associates; that at the time of his exclusion he was entitled to a large sum of money, which those persons unjustly and illegally appropriated to their own use; that George Rapp was the leader and trustee of the association, invested with the title to its properly ; and that, since his death, the defendants have acquired the control and management of its business and affairs, and the possession of its effects. The plaintiff calls for the production of the articles of association, which from time to time have regulated this society, and prays for an account and distribution of its property, or a compensation for his labor. The defendants produce a series of articles, by which the association has been governed since its organization in 1805. They admit, that from small beginnings the society have become independent in their circumstances, being the owners of lands ample for the supply of their subsistence, warm and comfortable houses for the members, and engines and machinery to diminish and cheapen their labors. They affirm that the plaintiff participated in all the individual, social, and religious benefits which were enjoyed by his fellows, under their contract, until he became possessed by a spirit of discontent and disaffection, a short time before his membership terminated. They deny that the- plaintiff was wrongfully excluded from the association, or deprived of a share or participation in the property and effects, by the combination or covin of George Rapp and his associates; but assert, that voluntarily, and of his own accord, he separated himself from the society. They deny that he had a title to any compensation for labor and service while he was a member, other than that which was expended for his support, maintenance, and instruction, and that which he derived during the time from the spiritual and social advantages he enjoyed. To support this averment, they epitomize the history of the Harmony Society, and the agreements which, from time to time, have been the basis of its organization. The society was composed at first of Germans, who emigrated to the United States in 1805, under the leadership of George Kapp. The .members were associated and combined by the common belief that the government of the patriarchal age, tmited to the community of property, adopted in the days of the Apostles, would, conduce to promote their temporal and 128 SUPREME COURT. Baker et al. v. Nachtrieb. eternal happiness. The founders of the society surrendered all their property to the association, for the common benefit. The society was settled originally in Pennsylvania, was removed in 1814 and 1815 to Indiana, and again in 1825 to Economy, in Pennsylvania. Tire organic law of the society, in regard to their property, is contained in two sections of the articles of association, adopted in 1827 by the associates, of whom the plaintiff was one. They are as follows: “All the property of the society, real, personal, and mixed, in law or equity, and howsoever contributed and acquired, shall be deemed, now and forever, joint and indivisible stock; each individual is to be considered to have finally and irrevocably parted with all his former contributions, whether in land, goods, money, or labor, and the same rule shall apply to all future contributions, whatever they may be. “ Should any individual withdraw from the society, or depart this life,. neither he, in the one case, nor his representatives, in the latter, shall be entitled to demand an account of said contributions, whether in land, goods, money, or labor; or to claim anything from the society as matter of right. But it shall be left altogether to the discretion of the superintendent to decide whether any, and, if any, what allowance shall be made to such member, or his representatives, as a donation.” The defendants, admitting, as we have seen, that the.plaintiff, until 1846, was a contented member of the association, answer and say, that during that year he became disaffected; used violent threats against the associates; made repeated declarations of his intentions to leave the society, and in that year fulfilled his design by a voluntary withdrawal and separation from the society, receiving at the same time from George Rapp two hundred dollars as a donation. They exhibit, as a part of the answer, a writing, signed by the plaintiff, to the following effect: “ To-day I have withdrawn myself from the Harmony Society, and ceased to be a member thereof; I have, also received of George Rapp two hundred dollars as a donation, agreeably to contract. Joshua Nachtrieb. “Economy, June 18, 1846.” This statement of the pleadings shows that no issue‘was made in them upon the merit of the doctrines, social or religious, which form the basis of this association; nor any question in reference to the religious instruction, and ministration, or the domestic economy or physical discipline which their leader and the other managers have adopted and enforced. DECEMBER TERM, 1856. 129 Baker et al. v. Nachtrieb. Nor do they suggest any inquiry into the condition of the members, and whether they have experienced hardship, oppression, or undue mortification, from the ambition, avarice, or fanaticism, of their guides and administrators. The bill depends on the averments, that the plaintiff approved the constitution of the society; submitted to its government; obeyed its regulations, and prized the advantage of being a member. The burden of his complaint is, that he was wrongfully, and without any fault or consent on his part, deprived of his station through the combination of the leader and his assistants. And the defendants concede the character the plaintiff claims for himself; they concede that the plaintiff, was an approved and blameless member of the association, and was entitled to whatever its constitution and order provided for the temporal good or the eternal felicity of the members, and assert that he enjoyed them until he became disaffected and repining, and finally surrendered to a spirit of discontent, which moved him to abandon his condition and privileges. As an evidence of this, they produce a wilting, signed by him, in which he acknowledges a voluntary secession from the society, and claims that the case has arisen to authorize him to make an appeal to the bounty of the superintendent, and that the superintendent has answered that appeal by a donation. The value of this writing is now to be considered. The power of the superintendent to substract from the otherwise “joint and indivisible stock” of the society a portion for the individual use of a seceding member, depends upon the concession that the member has withdrawn voluntarily. He cannot supply one who is the victim of covin or combination. The evidence shows that the mind of the plaintiff, in June, 1846, was disquieted in consequence of his connection with the association, and that he contemplated a change in his condition; that he made inquiries upon the expediency of a removal from Economy, and made some preparations for his departure; that the leader of the. society, suspecting his discontent, and discovering some deviation by him from the rules of the society, rebuked him with harshness, anc( menaced him with a sentence' expulsion. . Some of the witnesses testify to such a sentence, while the testimony of others reduces the expressions to an admonition and menace. But two days after the occurrence of the last of these scenes, and before any removal had taken place, the writing in the record was executed by him, embodying his decision to leave the society, and to accept the bounty e constitution permitted the superintendent to bestow. This writing would have much probative force, if we were simply treat it as an admission of the statements it contains, when vol. xix. 9 130 SUPREME COURT. Meegan v. Boyle. considered in connection with other evidence in the record. But, we think, this , writing is something more than an admission, and stands in a different light from an ordinary receipt. The writing must be treated as the contract of dissolution, between the plaintiff and the society, of their mutual obligations and engagements to each other. Ro evidence of prior declarations or antecedent conduct is admissible to contradict or to vary it. It was prepared to preserve 'the remembrance of what the parties had prescribed to themselves to do, and expresses their intention in their own language; and that such was its object, is corroborated by the fact that for tfyree years there is no evidence of a contrary sentiment. Treating this writing as an instrument of evidence of this class,,it is clear that the bill has not made a case in which its validity can be impeached. To enable the plaintiff to, show that the rule of the leader, (Rapp,) instead of being patriarchal, was austere, oppressive, or tyrannical ; his discipline vexatious and cruel; his instructions fanatical, and, upon occasions, impious; his system repugnant to public, order, and the domestic happiness of its members; his management of their revenues and estate rapacious, selfish, or dishonest; and that the condition of his subjects was servile, ignorant, and degraded, so that none of them were responsible for their contracts or engagements to him, from a defect of capacity and freedom, as has been attempted by him in the testimony collected in this cause, it was a necessary prerequisite that his bill should have been so framed as to exhibit such aspects of the internal arrangements and sdcial and religious economy of the association. This was not done; ami for this cause the evidence cannot be considered. The authorities cited from the decisions of this court are decisive. Very v. Very, 13 How., 361, 345; Patton v. Taylor, 7 How., 157; Crockett V. Lee, 7 Wheat., 525. Decree reversed. Bill dismissed. James Meegan, Plaintiff inError, v. Jeremiah T. Boyle. In Missouri, where a deed was offered in evidence, purporting to convey the titles of married women to land, and their names were in the handwriting ot other persons, and there was no proof that the women had either signed or acknowledged the deed, it was properly refused by the court to be allowed to go to tn The property was paraphernal, and could not be conveyed away by their hus-bands. . . , .nn. The facts in the case were not sufficient to warrant the jury to presume the con sent of the married women. DECEMBER TERM, 1856. 181 Meagan v. Boyle. The original deed not being evidence, a certified copy was not admissible. An old will, which had never been proved according to law, was properly excluded as evidence. Moreover, no claim was set up under it, but, on the contrary, the estate was treated as if the maker of it had died intestate. Neither the deed nor the will come within the rule by which ancient instruments are admitted. It only includes such documents as are valid upon their face. The statute of limitations did not begin to run until after the disability of coverture was removed. This case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri. Boyle, who was a citizen of Kentucky, brought an action of ejectment against Meegan, to recover a lot within the present limits of the city of St. Louis, in Missouri, which was particularly described in the declaration. There was no dispute about location, and both parties claimed under the title of Francis Moreau. The lot was recommended for confirmation by Recorder Bates, in 1815, and confirmed to Moreau’s representatives (he being then dead) by the act of Congress passed on the 29th of April, 1816. Boyle alleged that a portion of the title remained in Moreau’s descendants until 1853, when it was levied upon under a judgment, and sold to him at a sheriff’s sale. . On the other hand, it was the effort of Meegan to show-that these descendants had parted with their title by deed, or that Moreau had willed away the property a long time before the sheriff’s sale. The portion of the title which Boyle claimed was the entire share of Angelique, one of Moreau’s daughters, who married Antoine Mallette, about 1804 or 1805; the shares of two of Moreau’s grand-daughters, being the children of his daughter Helen, who had married Pierre Cerre, said grand-daughters having married, one of them Pierre Willemin, and the other Felix Pingal. Boyle also claimed the derivative share which these persons were entitled to as the heirs of two of Moreau’s children, whose title was alleged to have remained vested in them at their deaths, without issue. One of these deceased children was Marie, who had married Collin. i under which Boyle claimed was recovered, in afaa^118^ Angelique Mallette, then a widow, (the daughter oi Moreau,) Pierre willemin and Melanie Cerre, his wife, (a grand-daughter of Moreau,) and Felix Pingal and Josephine berre, his wife, (another grand-daughter of Moreau.) Upon the trial, Boyle offered in evidence the certificate of tne recorder of land titles in Missouri, the survey, the confirmation, and the pedigree of Moreau’s family, with the dates of ne deaths which had taken place. He then gave in evidence e sheriff s deed to himself, and proved that Meegan had been m possession of the premises since 1839. 132 SUPREME COURT. Meegan v. Boyle. The line of defence was to show that the title had passed out of Moreau’s heirs to a person named Chouteau, and from him to Mullanphy, who had been in possession since 1820. For this purpose, a paper was offered in evidence, purporting to be a deed from Moreau’s heirs to Chouteau, dated September 3d, 1818. It had attached to it the names of three of the daughters of Moreau, (amongst other signatures,) viz: Marie Collin, Angelique Moreau, and Ellen Moreau. It had also the signatures of the husbands of the two last, viz: Antoine Mal-lette, the husband of Angelique, and Pierre Cerre, the husband of Ellen or Helen. Marie Collin’s name was written; the others made their marks. It was proved that her name was in the handwriting of her husband, Louis Collin; the names of Antoine Mallette and Pierre Cerre were in the handwriting of Guyol, and that of Ellen Moreau, the wife of Pierre Cerre, was in the handwriting of Hawley. John O’Fallon testified that he became the executor of Mullanphy in 1833, and that this deed was received by him amongst the other titlepapers of Mullanphy. The defendant then offered to* read the deed in evidence. To the admission of which the plaintiff objected, because the deed was not signed or acknowledged by Marie Collin, Angelique Mallette, and Helen Cerre, under whom he claims, and because there was no proof that it had been executed by them under whom he claimed, and because the deed did not convey or pass the title of Mrs. Collin, Mallette, and Cerre, under whom he claims; which objections were sustained by the court, and the same was not admitted in evidence; to which ruling of the court the defendant excepted. The defendant was allowed to read in evidence a deed from Chouteau and wife to Mullanphy, dated 30th October, 1819, to which the plaintiff did not object, because, if Chouteau had no title, he could convey none to Mullanphy. The defendant then offered a certified copy of the deed from Moreau’s heirs to Chouteau, to the admission of which the plaintiff objected, for the same reasons urged against the original deed. The objection was sustained, the copy excluded, and the defendant excepted. The defendant then offered a paper purporting to be the will of Francis Moreau, executed on 2d of August, 1798, before sundry official persons, by which he made his son, Joseph Moreau, his universal legatee. . ' To the admission of which the plaintiff objected, because the wilLhad not been probated or proved in any lawful manner , because the conditions were not proved to have been complied, with; because the Spanish law authorized no such disposition DECEMBER TERM, 1856. 133 Keegan v. Boyle. of property as therein made; and because there was evidence before the court to show that the devisee had not accepted the estate under the will, but had renounced it, which objections to the will were sustained by the court, and the will was not admitted in evidence, to which ruling of the court the plaintiffs then and there excepted. At the same time the will was offered, sundry deeds and documents were read in evidence, the purport of which was to show that the estate of Erancis Moreau was treated, after his death, as if he had died intestate. The defendant then prayed the court to give the following instructions to the jury: 1. If the jury find that Francis Moreau, in his lifetime, was the owner of the lot in controversy, that he died prior to 1804, and that his two daughters, Mrs. Mallette and Mrs. Cerre, took ’ their husbands prior to 1804, then the several interests of said daughters in said lot became, upon their marriage, and was their paraphernal property. 2. If the jury find as mentioned in instruction Ko. 1, and farther find that, in the year 1818, Mallette and Pierre Cerre, husbands of said daughters, made the deed read in evidence by the defendants, then, under the evidence in this cause, the jury may presume that said daughters gave the administration of said paraphernal property to their husbands, and that the same was alienated with their consent. 3. If the jury find as mentioned in instruction Ko. 1, and further find that the defendants and those under whom they clam have had open and continued possession of the lot in question for thirty years and more before the bringing of this suit, claiming to own the same, then the plaintiff cannot recover any interest in said lot, derived by Mrs. Mallette or Mrs. Cerre from their said father. If Mrs. Pingal was dead, leaving a child, at the time of the sheriff’s sale, under which plaintiffs claim, and during all the time of the coverture of said Mrs. Pingal, the lot in controversy was in the possession of the defendants, and those under whom they claim holding the same adversely to Mrs. Pingal and her husband, and there never was any entry on the part of the wife or husband, then the plaintiff derived no title to the controversyJ under Mrs. Pingal or her husband. The court gave the instruction Ko. 1, and refused the others, whereupon the defendant excepted. he jury found the following verdict: “We find the defendant guilty of the trespass and ejectment complained of, as to two-fifths undivided of all the block of land, part of the premises demanded, lying in the city of St. 134 SUPREME COURT. Meegan V. Boyle. Louis, bounded north by the north line of the Moreau arpent, being survey Ko. 1,480; south by the sofith line of said survey, 1,480; east by Seventh street; west by Eighth street, excepting only the two lots Ko. 7 in said block, as shown by the proceedings in partition between the heirs of John Mullanphy, deceased; and we assess the plaintiff’s damages, sustained by the plaintiff by the said trespass and ejectment, at the sum of ten dollars, and find the monthly value thereof to be one dollar; and the defendant is not guilty as to the residue of the premises demanded.” The case was argued in this court by Mr. Geyer for the plaintiff in error, and Mr. Williams and Mr. Crittenden for the defendant. Mr. Geyer made the following points: The plaintiff* in error submits that the Circuit Court erred in rejecting the documentary evidence offered by him at the trial. 1. The instrument, purporting to be the deed of the heirs of Moreau to Chouteau, dated 3d September, 1818, and that offered as the act of Pierre Reaume and wife, dated 6th Ko-vember, 1819, ought to have been admitted in evidence. The execution of the last-mentioned deed was fully proved by proof of the death of the subscribing witnesses and their handwriting. (See Sarpy’s evidence, p. 17.) Both instruments were more than thirty years old at the time of the trial, and proved themselves. The bare production of them was sufficient to entitle them to be read as the deeds of the parties whose acts they purport to be. (1 Greenl. Ev., sec. 21, p. 142.) The presumption of the due execution of these instruments is moreover corroborated by the facts and circumstances in evidence at the trial: 1. it is proved that several of the parties collected at St. Louis from other places, for the purpose of making a conveyance of their interest in the land, at about the time of the date of the first instrument, and afterwards declared that they had sold to Pierre Chouteau. 2. The exigence of the deed soon after is established by the official certificates appended. 3. The title of Chouteau, as derived from the heirs of Moreau, is recited in his deed to Mullanphy, executed, acknowledged, and recorded, in 1819. 4. Both the instruments rejected by the court were recorded in the‘proper office, and were in the possession of Mullanphy, under whom the defendant below claimed more than thirty years before the trial. 5. Mullanphy, the grantee of Chouteau and those claim DECEMBER TERM, 1856. 135 Meegan v. Boyle. ing under him, have been in undisturbed possession of the land, claiming under those deeds, more than thirty years. 6. All the parties grantors, except Alexis and Joseph Moreau, resided in the county of St. Louis, and no one of them ever set up a claim to the land. (See 1 Greenl. Ev., sec. 21, pp. 143, 144, 570, and cases there cited; Gray v. Gardner, 3 Mass. R., p. 399; Coleman v. And., 10 Mass. R., p. 105; Spoler v. Brown, 6 Binney, p. 435; Lee v. Tapscott, 2 Wash. R., 276; Doe ex dem. Clinton v. Phelps, 9 Johns., p. 169; Same v. Campbell, 10 do., p. 475; Newman v. Studley, 5 Mo. R., p. 291.) If the antiquity of the instrument, together with the facts and circumstances disclosed at the trial, were not absolutely conclusive of their due execution, they at least afford a fair and reasonable' presumption of that fact, and ought to have been referred to the consideration of the jury, to whom alone it belonged to determine upon the precise force and effect of the circumstances proved, and whether they were sufficiently satisfactory and convincing to warrant them in finding the fact. (1 Phillips Ev., p. 437.) The fact, if it had been found by a jury, or admitted, that the deed of 3d September, 1818, was “ not signed or acknowledged by Marie Collin, Angelique Mallette, and Helen Cerre, and had not been executed by any person under whom the plaintiff claims,” would not authorize the rejection of the deed: it being admitted, and very fully proved, that' it was duly executed by other parties having title as tenants in common in the land. ; The plaintiff exhibited no conveyance or other evidence of title from Marie Collin; and, if her interest was not conveyed by the deed of 1818, it passed on her death (she having died without issue) to her brothers and sisters, and their descendants. Nor does he derive title under Angelique Mallette, or Helen Cerre, by any act of theirs, or of their representatives. His claim is founded on a sheriff’s sale on execution (without judgment produced) against Angelique Mallette, Pierre Willemin, and Malanie Cerre, his wife, Felix Pingal, and Josephine, Cerre, his wife, by her guardian, which Malanie and Josephine are two of three surviving children of Helen Cerre. The latter, Josephine, was probably dead at the time of the sale, and, if living, an infant. At most, the plaintiff could claim only one share and two-thirds of another. And it was competent for the defendant to give in evidence conveyances from the other parties in interest. The deed of 3d September, 1818, was duly acknowledged by Joseph Ortiz, and Eleanor, his wife, Joseph Minard, Auroria, 136 SUPREME COURT. Meegan v. Boyle. his wife, and the execution of it was proved at the trial by proof of the handwriting of Thomas R. Musick, in whose presence it was signed and acknowledged. The execution of the deed of Reaume and wife is proved beyond controversy. Joseph Minard, Eleanor Ortiz, and Marceline Reaume, are the children and heirs of Marie Louise Minard, deceased, who was a daughter of Francis Moreau, and wife of Joseph Minard, deceased. The execution of the same deed by Alexis Moreau, and by Joseph Moreau, is established by the evidence of Osille Andre, the widow of Alexis Moreau, and by the declarations of both Alexis and Joseph, in the presence of other witnesses. But it is sufficient, if the deed was executed by any one of those having title under Francis Moreau, to entitle the defendant to read it in evidence. If admitted, the plaintiff could not have recovered, there being no proof of an actual ouster, or any act equivalent. (Rev. Code of Mo., 1845, Tit. Ejectment, s. 11.) 2. The will of Francis Moreau, being one of the archives of the Spanish Government deposited in the office of the recorder of St. Louis county, and therein recorded and duly certified, was competent evidence by the statute law of Missouri. (Rev. Code, 1845, Tit. Evidence, s. 12.) This document is what is called an open testament, being dictated viva voce. It was made before the commandant in lieu of a notary, in the presence of a sufficient number of witnesses, and afterwards deposited and preserved among the archives of the Government, and needed no probate to give it effect. (Partidas, L. 3, T. 1, b. 6; Novis’a Recop., L. 1, T. 18, b. 10; Schmidt’s Civil Law, Tit. 7, chapter 5.) In Upper Louisiana, the commandants of the posts, or some one designated by the Lieutenant Governor, were substituted for the notaries, and their acts have always been regarded as notarial acts, and of the same effect. (See McNare v. Hunt, 5 Mo. R., 300.) The will contains no condition precedent to the operation of the clause by which Joseph Moreau is instituted universal heir, and if it did, proof - of performance would not be a necessary preliminary to the admission of the document in evidence. The will is not void on account of the institution of a universal heir—the effect is only to give to him that portion of the. estate disposable by testamentary donation, which in this case is one-third; the residue will pass to the heirs ab intestate. The acceptance of the donation by the instituted heir is not more necessary than the acceptance of the succession by the legal heirs—in either case, it may be express or implied—and when DECEMBER TERM, 1856. 137 Meegan v. Boyle. material, is a question of fact for the jury. (Schmidt’s Civil Law, Tit. 7, ch. —, art. 1059; chap. 8, art. 1177, Tit. 8. c. 5; Novis. Recop., L. 1, T. 18, b. 10; 18th Law of Toro.; Partidas, L. 11,13, 15, Tit. 6, b. 6.) The following points are taken from the brief of Mr. Williams, counsel for defendant in error: It was conceded at the trial, that the property vested in the daughters in this way was paraphernal, according to the code of laws lately prevailing here. “A succession accruing to the wife during marriage is her paraphernal property, which she may administer without the authorization, consent, or interference, of her husband.” (Flower v. O’Conner, 8 Martin, n. s., 556; Savenat et al v. Le Breton, 1 Lousi. R., p. 520.) This species of property could not be sold by the husband without the consent of the wife. (O’Conner v. Barre, 3 Martin, Lousi. R., 455.) The property a woman inherits during marriage is paraphernal. (Allen v. Allen, 6 Rob. R., 104.) The woman is accustomed to bring, besides her portion, (dot,) other property, which is called paraphernalia, and which is, or are, the property and things, whether (muebles) personal or (reeles) real, which wives retain for their separate use. From this definition, it follows: 1. That if the wife gives to the'husband this property, with the intention that he may have the dominion (senorio) of it, he shall possess it during marriage; and if she should not do this expressly in writing, the dominion of such property shall always be in the wife. (1 White’s New Recopilacion, p. 56.) On same page, Note 33, it is said that Palacios questions the necessity of a writing, but says it must appear that the wife made. a gift to her husband, with the intention of giving him dominion over it. 2. The supposed deed of Angelique Mallette, Marie Collin, and Helen Cerre, was properly excluded from the jury as a conveyance of their property. 1. The supposed deed was not valid under the Spanish law, as to Marie Collin, because her husband did not execute it. 2. It was not valid as to either of the women, because it does not appear that either of them ever signed it or assented to it, nor that either of them ever knew of its existence in the life of her husband; nor does it appear that either of them ever gave her husband the property or power to sell it. 3. That the supposed deed was not valid under the common law, which was introduced into the Territory January 19,1816, 18 t°° obvious for comment. (1 Ter. Laws Missouri, p. 436.) „ *• The facts in evidence did not authorize any presumption or the execution of the instrument by the married women. It 138 SUPREME COURT. Meegan v. Boyle. was insisted at the trial, that the supposed deed should be admitted, that it might be submitted to the jury, whether, under all the evidence in the cause, they would not presume a conveyance by them to the parties in possession. The position on the other side was this: That if the husband conveys the wife’s lands, and possession is taken under the conveyance, and is continued for thirty years, and is open and notorious, and then the husband dies, any subsequent claim by the wife is overturned by the presumption of fact arising on these circumstances, that, she has conveyed the property. To our minds this is a monstrous proposition. The discussion of it is undertaken with the apology, that it was pressed with a great deal of zeal at the trial, and is, perhaps, to constitute the principal point in the cause in this court. Nothing is more intelligible than the principle on which a conveyance is presumed. It is well stated, as follows: “ The rational ground for presumption is, when the conduct of the party out of possession cannot be accounted for without supposing that the estate has been conveyed to the party in possession.” (Kingston v. Lesly, 10 8. and R., 391.) “It is founded on the consideration, that the facts and circumstances are such as could not, according to the ordinary course of human affairs, occur without presuming a transfer of title, or an admission of an existing adverse title in the party in possession.” (Jackson v. Porter, Paine R., 489.) “ The presumption may always be rebutted by showing that the possession held or privilege exercised was perfectly consistent with the right or interest of the party who afterwards sets up the adverse claim.” (Daniel v. North, 11 East R., 372.) “ And this presumption in favor of a grant, and against written evidence of title, can never arise from mere neglect of the owner to assert his rights, where there has been no adverse title or enjoyment by those in whose favor the conveyance is to be presumed.” (Schauber v. Jackson, 2 Wend., 37; Doe v. Butler, 3 "V^end., 153; Lynde v. Dennison, 3 Conn., 396; Ricord v. Williams, 7 Wheaton, 109; Roberts on Frauds, p. 67, note.) “As soon as it appears that during the time in which it is presumed the party would have asserted his right, if he had one, that party was under a legal disability, which prevented or excused it, there is an end of the presumption. It may be necessary, in this case, to quote an authority, that when one has had no power to do an act, no presumption can arise that he did it. (Martin v. State of Tenn., 10 Humph., 157.) Now, what was the condition of the persons here against whom presumptions are supposed to arise ? Marie Colhn was married in 1805, and so remained till March 22, 1840. Angelique Mallette was a married woman from 1804 till April 1 , DECEMBER TERM, 1856. 139 Meagan v. Boyle. 1844. Helen Cerre was married at the date of the supposed deed, and so remained till 1838. The common law was introduced into the Territory of Missouri, January 19,1816, (1 Ter. Laws Mo., 436,) and placed these women under all the disabilities belonging to that code. When their property was sold by their husbands, there was no possible mode in which they could interpose a legal objection. No remedy known to the law was within their reach, to redress the wrong done; their silence, then, is perfectly consistent with their rights. They seemed to acquiesce in the possession, because they could not help it. They could not sue; and reason would seem to indicate that in such case they should be excused for not suing. But just the reverse is the argument of the plaintiff in this court. He contends that the same law which put it out of their power to sue, at the same moment declared that if they did not sue, it must be presumed that they had surrendered their titles. “Why,” said the adversary at the trial, “suppose they had sued, and their suits been dismissed, still they would have asserted their claim ! ” Such is the doctrine supposed to belong to the common law, which some are pleased to consider the perfection of reason. It requires what it forbids. It punishes, by nothing less than forfeiture, the not doing what it provides shall not be done. But this singular view is supposed to be supported by books. The plaintiff in error claims that it has been so decided in Melvin v. Proprietors of Locks and Canals on the Merrimack River, 16 Pick., p. 140. The case is this: Joana Fletcher, by her father’s will, became in 1771 tenant in common of an undivided half of the premises in suit, and was in peaceful possession till her marriage to Benjamin Melvin, in February, 1777, when her husband in her right went into possession. In 1782, Melvin, the husband, conveyed the premises to Chambers, by a deed which, though signed by Joana, did not pass her title. The possession was taken, under the conveyance, and held peaceably by Chambers and those claiming under him, making valuable improvements, till after the year 1832, when one of Joana’s sons brought suit, she having resided with her husband near the land, making no claim up to her death in 1826, and the husband making no claim up to his death in 1830. The court held there was no acqui-en It has always been held by our courts, that the enactment of the statute of limitations of 1818, and the introduction or the common law in 1816, not only abolished the rules or prescription under the Spanish law, but annulled the pow DECEMBER TERM, 1856. 143 Meegan v. Boyle. of married women and infants to bring any action while under disability. (Landes v. Perkins, 12 Mo. R., 257; Youse v. Nor cum, 12 Mo. R., 549.) 4. Felix Pingal was entitled as tenant by the courtesy to his wife’s lands, although neither the husband nor the wife was actually seized during the coverture. (4 Kent’s Com., 29, 30; 1 Hilliard R. Est., Ill; Reaume v. Chambers, Appendix.) 5. When a large amount of property is in controversy, desperate means are sometimes resorted to, for the purpose of holding possession. Such is the attempt to set up, in bar of this suit, the pretended will of Francis Moreau. The Spanish law required a will to be produced before the judge, and proved by the attesting witnesses, within one month after the testator’s death. The witnesses having been exam-ined, the will was ordered to be protocoled (recorded.) (1 White’s Recopilacion, 111; 2 Moreau and Carleton’s Partidas, 975, 976, 977.) Francis Moreau had no right to give all his property to ope child. He could not disinherit a cliild without cause, nor without naming expressly the child, and the reason of the disinherison. (2 Moreau and Carleton’s Partidas, 1031, 1032, 1033; 1 White’s Recopilacion, 107.) To entitle an heir to the benefit of a devise, it was necessary he should have performed the conditions annexed to it. (2 Moreau and Carleton Partidas, 997, and following; 1 White’s Recopilacion, 103.) And it was also necessary he should appear before the judge, and plainly accept or reject the devise. (1 White’s Recopilacion, 111, 127.) But this will, if it was ever seen by Francis Moreau, was never produced to any judge after his decease—never shown to the pretended witnesses—never proved—never recorded— never accepted by the heir, in the manner required by law. And Joseph Moreau, who. is made by it universal heir, never performed any of the conditions which it imposed upon him. Joseph did, after his father's death, make claim to the succession, and for this he was imprisoned by the Lieutenant Governor. It is most probable, therefore, that the pretended will was a iorgery. It is certain that Joseph Moreau, after his release from prison, acted towards the property of the estate, and towards ms brothers and sisters, as if his father had died intestate, and the estate Was se^e(i and distributed as an intestate’s estate, it the pretended will had been legally established, Joseph was estopped by his own acts against setting it up. Mr. Justice McLEAN delivered the opinion of the court. Inis writ of error brings before us the judgment of the Circuit Court for the district of Missouri. 144 SUPREME COURT. Meegan v. Boyle. Boyle brought an action of trespass and ejectment in the Circuit Court for a common-field lot, in what was formerly known as the Big Prairie, of St. Louis, containing one arpent in front, on Broadway, in the city aforesaid, by the depth of forty arpens, running westwardly, being the same lot of land granted by the Spanish Government to Moreau, and confirmed to his representatives by the United States, and known as survey 1,480. The defendant pleaded not guilty. A verdict of guilty was found against him for an undivided two-fifths of the land described. A grant of the land claimed under the Spanish Government was proved to have been made to Francis Moreau, who occupied the land some time before his death, which took place in 1802. He left seven children surviving him—three sons and ' four daughters. His sons were named Joseph, Alexis, and Louis; his daughters, Manette, widow of one Cadeau, and afterwards wife of Louis Collin; Marie Louise, wife of Joseph Menard; Helen, who afterwards intermarried with Pierre Cerre; and Angelique, who intermarried with Notaine Mallette. The plaintiff gave in evidence a sheriff’s deed,, dated the 24th of February, 1853, which recites a judgment in favor of David Clary and William Waddingham, against Angelique Mallette, Pierre Willemin, and Melanie Cerre, his wife, Felix Pingal and Josephine Cerre, his wife, by her guardian, for $455.31, on which an execution was issued, and levied on the defendant’s land, designated as survey 1,480, and the same was sold the 19th of February, 1853, to the plaintiff Boyle, to whom the above deed was given, which purports to convey all the right and interest of the defendants. The plaintiff proved that defendant had been in possession of the premises since 1839. On the part of the defendant it was proved that, in the summer of 1820, John Mullanphy built a small brick house, which stands partly on the premises sued for, and partly on one of the common-field lots confirmed to Vien. Soon after the house was built, Mullanphy fenced three or four acres of ground, including the house. In 1822 or 1823, he enclosed fifteen or twenty acres, and in 1835 or 1836, John O’Fallon, the executor of Mullanphy, induced Waddingham to enclose all the land claimed by the estate of Mullanphy in that neighborhood, which included the land sued for. The house and enclosures were rented to different persons from time to time, and were occupied with occasional intervals, sometimes of several months. In 1846 or 1847, Waddingham’s fence fell down, and the tract DECEMBER TERM, 1856. 145 Meegan v. Boyle. lay vacant and unenclosed for a year or two, when portions of it were enclosed by the heirs .of Mullanphy. At the trial, a paper was offered in evidence, purporting to be the deed of Joseph Moreau and others, heirs of Francis Moreau, deceased, dated the 3d of September, 1818, conveying to Pierre Chouteau all their estate and interest in the tract of land in the declaration described. A certificate of Thomas R. Musick, a justice of the peace, certifying that Joseph Menard and wife, Joseph Ortiz and his wife, signed the instrument, and acknowledged it to be their deed. There was also offered an instrument purporting to be a deed of Pierre Reaume and Marceline, his wife, and of Joseph Menard and Marie Louise Moreau, dated 6th November, 1819, conveying to Pierre Chouteau their interest in the land conveyed by their co-heirs, by the foregoing deed. Also, there was offered a certificate of Raphael Widen, notary public, of the acknowledgment of this instrument, the 6th November, 1819; and also a certificate that both the instruments were recorded 6th June, 1822. It was proved that the above papers, after the death of John Mullanphy, came into the possession of John O’Fallon, having been found among the papers of the deceased. The signatures to the first instrument were affixed by marks, the names being in the handwriting of F. M. Guyol and others. Certain persons swore that they heard several of the heirs say they had sold their land to Pierre Chouteau. That Joseph Moreau lived in Louisiana in a destitute condition, where he died; and that he was never heard to claim any land in St. Louis, and, in fact, that he said he had sold his land in Missouri. Pierre Chouteau and wife, on the 30th October, 1819, conveyed the tract in controversy to John Mullanphy by deed, which was duly acknowledged and recorded. On the above evidence, the two deeds in 1818 and 1819 were offered in evidence, to which the plaintiff objected, u because the first deed was not signed or acknowledged by Marie Collin, Angelique Mallette, and Helen Cerre, under whom he claims, and that it did not convey any title of the femes covert.” J J The defendant then offered in evidence a copy of the will of hranpois Moreau, certified by S. D. Barlow, recorder, to have • ^'rorri among the archives of the French and Span- ^h Governments, deposited in his office, and filed for record 1 ' th August, 1846, being archive 2,257. If the recorder had power to certify as to the deposit of the will, it does not appear by whom it was made, nor at what time. vol. xix. io 146 SUPREME COURT. Meegan v. Boyle. This instrument states that in the year 1798, on the 2d August, we, Louis Collin, in default of a notary, went to the home of St. Francis Dunegant, captain commandant of St. Ferdinand, of Florisant, assisted by Antoine Rivierre and five others named; where St. Francois’ Moreau went with Joseph Moreau at my residence; the said Francis Dunegant and the said Frangois Moreau declared and requested to make‘his last will, which he pronounced to us in a loud and intelligible voice, as follows, &c.: “Among other provisions, the testator names his son Joseph universal legatee, and afterwards declares it is with the reserve, that he shall reimburse to each of his brothers and sisters $27 silver out of the estate, of their deceased mother, and it is declared that Joseph Moreau obliges himself to furnish certain articles annually to his father during his life.” The testimoneum is as follows: Done and.passed at St. Ferdinand, in Florisant, the day and year aforesaid, and signed (after being read) before Don Francis Dunegant, captain commanding, and the aforesaid witnesses; the said Francis Moreau made his ordinary mark, &c. At the time of offering the will, the following deeds and documents were read in evidence, as bearing upon said will, and its admissibility in evidence: a deed dated 2d April, 1818, from Joseph Moreau and others, for a lot on Third street, town of St. Louis. In the deed it is stated that Joseph Menard, Aurora, the wife of Joseph Hortiz, are children of---Moreau, alias Menard, deceased. Also, the inventory and account of sales of the estate of Francis Moreau, the inventory of the community property of Francis Moreau and wife, under the direction of Francis Dunegant, commandant, &c. On the foregoing testimbny the defendant moved the court to instruct the jury as follows: 1. If the jury find that Francis Moreau, in his lifetime, was the owner of the lot in controversy; that he died prior to 1804, and that his two daughters, Mrs. Mallette and Mrs. Cerre, took their husbands prior to 1804, then the several interests of said daughters in said lot became upon their marriage, and was their paraphernal property. . _ , 2. If the jury find, as mentioned in instruction No. 1, ana farther find, that in the year 1818, Mallette and Pierre Cerre, husbands of said daughters, made the deed read in evidence by the defendants, then, under the evidence in this pause, the jury may presume that said daughters, gave the administration of said paraphernal property to their husbands, and that the same was alienated with their consent. _ , S. If the jury find, as mentioned in instruction No. 1, ana further find, that defendants, and those under whom ey DECEMBER TERM, 1856. 147 Meegan V. Boyle. claim, have had Open and continued possession of the lot in question for thirty years and more, before the beginning of this suit, claiming to own the same, then the plaintiff cannot recover any interest in said lot, derived by Mrs. Mallette or Mrs. Cerre from their said father. 4. If Mrs. Pingal was dead, leaving a child, at the time of the sheriff’s sale, under which plaintiff claims, and during all the time of the coverture of said Mrs. Pingal the lot in controversy was in possession of defendants, and those under whom they cWm, holding the same adversely to Mrs. Pingal and her husband, and there never was any entry upon the part of the wife or husband, then the plaintiff derived no title to the lot in controversy under Mrs. Pingal or her husband. The court gave the first instruction, and refused the others, to which refusal exception was taken. It is argued that the deed of the heirs of Moreau to Chouteau, dated September 3, 1818, and that offered as the act of Pierre Reaume and wife, dated 6th November, 1819, ought to have been admitted in evidence; that the execution of the last-mentioned deed was fully proved by proof of the death of the subscribing witnesses and their handwriting. Some of the grantors in this deed acknowledged the execution of it before Thomas R. Musick, a justice of the peace, but there was no proof that Angelique or Helen Cerre, or Marie Collin, had signed or acknowledged the deed, and these were the heirs under which the plaintiff claims. It was proved by Colonel O’Fallon, that he was the executor of John Mullanphy, and that in 1833 he received from the son of the deceased the title-papers of the estate, among which was the above original deed, with certain endorsements. And it was proved that the deed was in the handwriting of Guyol, a justice of the peace, with whose handwriting he was well acquainted. It was also proved that the signatures, Antoine Mallette, Pierre Cerr6, Moreau, were in the handwriting of Guyol, and that of Marie. Collin in the handwriting of her husband, Louis yolhn; the signature, Ellen Moreau, the wife of Pierre Cerre, is in the handwriting of Hawley. Guyol, the witness states, was a man of good character. There was some proof that Jrierre Cerre ana Antoine Mallette, after the date of said paper, stated often that they had sold their land to Pierre Chou-■xT?? ^iere appears to be no proof that Angelique laiiette, or Helen Cerre, or Marie Collin, had ever stated tod ^ey had parted with their interest in the defcndant’s witnesses stated that Joseph Moreau io, that, after the decease of his father, he set up a claim to 148 SUPREME COURT. Meegan v. Boyle. the succession, and that he was imprisoned for doing so, and that Pierre Chouteau had him released. Some evidence was given as to the deed having been deposited in the recorder’s office for record, and an endorsement that it was to be handed to Mullanphy. The common law was adopted in the Missouri Territory in 1816, and consequently it governs all subsequent legal transactions. The children of Moreau, being seven at the time of his decease, were reduced, by the death of Louis, intestate, and Marie, who also died intestate, to five. And it seems that the plaintiff derived his title from two of the surviving daughters, Angelique and Helen, and their heirs; he therefore claims under Louis, Marie, Helen, and Angelique. It seems not to be contested that the property vested in the daughters, under the civil law, was paraphernal. A succession accruing to the wife during marriage is her paraphernal property, which she may administer without the consent or control of her husband. (O’Conner v. Barre, 3 Martin Lou. Rep., 455.) The wife may give the control of this property, in writing, to her husband. (1 White’s New Recopilacion, 56, note 33.) . The Circuit Court committed no error in excluding from the jury the'above deed. The execution of it, by the parties under whom the plaintiff claims, is not proved, nor do the facts relied on, from which a presumption is attempted to be drawn in favor of its validity, authorize such presumption. The femes covert were under disabilities. They could only divest themselves of their rights in the mode specially authorized. Their husbands had no power, without their concurrence and action, to convey their real estate. The defendant offered to read a certified copy of the deed, to show its condition at the time it was recorded, but the court refused to permit such copy to be read. If the original deed was not evidence, it is difficult to perceive for what legal purpose a recorded copy of it could be read. There was no error in this ruling by the court. There was no evidence that the will had been proved, or that the conditions stated in it had been complied with. A deed dated 2d April, 1813, from Joseph Moreau and his brothers and sisters, conveying to Hempstead and Farrar a lot which would have passed by the supposed will to Joseph Moreau, had it been operative. Also, there was shown a sale bill of the personal property of the estate on the 19th of Apri, 1803, Joseph Moreau being present, and that he purchase a part of the property devised to him by the will. . , Also, it was shown that an administrator was duly appom DECEMBER TERM, 1856. 149 Meegan v. Boyle. on the estate of Francis Moreau, and his estate was administered in the same manner as if he had died intestate. By the Spanish law, a will was required to be proved by the attesting witnesses within one month after the decease of the testator; and, when proved, it is required to be recorded. (1 White’s Recopilacion, 111; 2 Moreau and Carleton’s Partidas, 975—’6—’7.) The testator cannot disinherit a child without naming the child, and the reasons for doing so. (1 White’s Re., 107.) Ko heir can claim a devise, without performing the condition annexed to it. (1 White’s Re., 103.) It is required that he shall appear before the judge, and either accept or reject the devise. (1 White’s Re., Ill, 127.) Kone of these requisites were performed by Joseph Moreau, who was made, by the will, universal heir. If the will was a genuine instrument, and Joseph was the universal heir, it could not have remained dormant, it would seem, for fifty years, or in the archives, without being brought to the light, and having on it some judicial action. But whether it be a genuine instrument or not, it has not been treated as valid, as no claim has been set up under it, and all the heirs have acted, in regard to the estate of their father, as though he had died intestate. Keither the deed to Chouteau, nor the will, can be admitted in evidence, without proof, as an ancient instrument. The rule embraces no instrument which is not valid upon its face, and which does not contain every essential requirement of the law under which it was made. Keither the deed nor the will comes within the rule, and we think the court very properly excluded them both from the jury. In regard to the second, third, and fourth instructions, which the court refused to give to the jury, there was no error. As early as December 17, 1818, the Territorial Legislature passed an act limiting real actions, which remains m force. The act abolished all the rules of prescription under the Spanish law, and substituted a limitation of twenty years after action accrued, and, in case of disability by coverture, twenty years after it ceased. In 1820, it appears Mullanphy took possession °+ • premises in controversy, and from that time retained possession. Some of the husbands had a life estate in the lands; but whether this was so or not is immaterial, as there' is no bar to the claim of the plaintiff by the statute of limitations. By an act “prescribing the time for commencing actions,” approved March 10, 1835, (Revised Code, 396,) it is declared, m the 11th section, that “the provisions of this act shall not apply to any action commenced, nor to any cause where the 150 SUPREME COURT. Post et al. v. Jones et al. right of action or entry shall have accrued, before the time when this act takes effect, but the same shall remain subject to the laws How in force.” It will be observed, that the limitation act of 1818, being still in force, cannot operate on any of the femes covert of whom the plaintiff claims. It did not begin to run against them until they became discovert, from which time it required twenty years to bar their right. Under such circumstances, no presumption can arise against them, as they had no power to prosecute any one who entered upon their land. No laches can be charged against them until discoverture; and there is no ground to say that either the statute or lapse of time, since that period, can affect the rights of the plaintiff, or of those under whom he claims. The court, therefore, did not err in refusing to give to the jury the instructions requested. Upon the whole, the judgment of the Circuit Court is affirmed, with costs. William E. Post and others, Claimants of a portion of the Cargo of the Ship Richmond, Appellants, v. John H. Jones AND OTHERS, LlBELLANTS. It cannot be doubted that a master has power to sell both vessel and cargo, in certain cases of absolute necessity. But this rule had no application to a wreck where the property is deserted, or about to become so, and the person who has it in his power to save the crew, and salve the cargo, prefers to drive a bargain with the master, and where the necessity is imperative, because it is the price of safety. No valid reason can be assigned for fixing the reward for salving derelict property at “not more than a half or less than a third of the property saved.” The true principle in all cases is, adequate reward according to the circumstances of the case. 4 Where the property salved was transported by the salvors from Behring’s Straits to the Sandwich Islands, and thence to New York, the salvage service was complete when the property was brought to a port of safety. The court allowed the salvors the one-half for this service, and also freight on the other moiety from the Sandwich Islands to New York. This was an appeal from the Circuit Court of the United States for the southern district of New York, sitting in admiralty. . , , It was a libel filed by the owners of the ship Richmond and cargo, under circumstances which are particularly stated in the opinion of the court. . . The District Court dismissed the libel,* thereby affirming tne sales The Circuit Court reversed’ this decree, and declared the DECEMBER TERM, 1856. 151 Post et al. v. Jones et al. sales invalid, but that the respondents were entitled to a moiety of the net proceeds, in the New York market, of the articles brought in their respective ships, and sold by the said respondents, respectively; and that they pay to the owners of the Richmond the other moiety of the said proceeds, with interest, to be computed at the rate of seven per cent, per annum, from the dates of the sales of the said articles. The claimants appealed to this court. It was argued by Jfr. O' Connor for the appellants, and Mr, Lord for. the appellees. As this case involved some very important points, of law, with respect to the rights of captains of vessels upon the ocean, and also the rights and duties of salvors, the reporter thinks it proper to take an extended view of the arguments of counsel, although they sometimes refer to depositions and facts which are not especially mentioned in the narrative, which is given in the opinion of the court. Mr. O' Connor, for the appellants, made the following points: First Point.—The decree of the Circuit Court cannot be sustained, unless, by an unbending rule which admits of no exception or qualification, the power of the master to sell is absolutely limited to a sale by auction, with the advantage of free competition between rival purchasers. If, in any case, or under any circumstances, he may sell by private contract and to a single purchaser, the decree is erroneous. I. The authority of the master to sell in cases of extreme necessity like the present, is, as a genera! proposition, definitively settled. Even where there is only “a probability of loss, and it is made more hazardous by every day’s delay,’/ to act promptly, and thereby “to save something for the benefit of all concerned, though but little may be saved,” is his imperative duty. (Abbott on shipping, 5 Am. ed., pp. 14, 19; lb., note to page 19; Brig Sarah Ann, 2 Sumner, 215; New England Ins. Co. v. Sarah Ann, 13 Peters, 387.) II. The master of the Richmond had no other resort, for the purpose of saving anything, than the sale which he made. 1. Even if transportation to the shore was practicable, every witness who was examined testifies that preservation there, JonS. winter then approaching, was not possible. Ihe faint intimations to the contrary by Peeve, and those still fainter put forth by Cherry, scarcely form an exception to the universality of this opinion. 2. That freighting or salvage services were unknown in those 152 SUPREME COURT. Post et al. v. Jones et al. regions, and would not have been undertaken by any one, is still more distinctly established by the proofs. It rests not merely on the uniform opinion of experts, the absence of practice, the extreme remoteness of the scene from the theatre of any human action, except catching whales; for it is proven by the form of the insurance policies used by American whalers, the only civilized visiters of the territory. (1 Seward’s Works, p. 242; The Boston, 1 Sumner, 335, 336; Elizabeth and Jane, Ware, 38.) a. The freight, even as far as the Sandwich Islands, according to the best guess the libellants could elicit from any witness, if obtained by a miracle, would have exceeded the alleged maximum allowance in salvage cases. b. A salvage service would involve a transportation over 25,000 miles for adjudication. A judgment in rem in a foreign intermediate admiralty would not be regular or binding; nor, if so, would it be beneficial to these libellants. (The Hamilton, 3 Hagg, 168.) TIT. There Was no want of ordinary judgment or prudence in the manner of the sale. 1. He gave notice to every vessel within reach; and, considering the season, the little experience yet had in those seas in respect to the time of its closing, and the great danger there was that the Richmond might go to pieces in case of any delay, prudence dictated the earliest possible action. a. The experts differ much as to the time of the season closing. b. Even Reeve deemed it unsafe to stay longer. c. P. Winters’s anxiety to get cargo on board of the Frith for safety even before the sale is manifest. 2. The event is not the proper test, but if applied, here it would favor the master’s decision. He could not have induced these three ships to lie idle, and to lie still in an unlucky, spot until the 18th of August, waiting for customers. And if he had the means of working this singular achievement, there is no satisfactory evidence that he could have drummed up a sufficient company to make an auction such as the decree below requires. 3. The weight of evidence is, that as much was obtained as could have been gotten if there were numerous bidders. 4. The want of precision and exactitude as to weight, ana measure, in a place where neither weights not measures existed or were in use, is an unimportant circumstance. 5. Dispensing with settlement or payment till the meeting at Sandwich Islands was natural, and indeed necessary; for money was not to be had. DECEMBER TERM, 1856. 153 Post et al. v. Jones et al. 6. The difference in value between oil and bone, which might have led to a more profitable arrangement, did not at the time occur to any one concerned in these transactions. It is not necessary to the validity of the sale, that in every detail the most subtle contrivances ingenuity can suggest for attaining a profitable result should have been resorted to. TV There is not the remotest ground for imputing fraud or ill motive to any one concerned. 1. That Philander Winters was in failing health, apprehensive of approaching death, and susceptible of fraternal tenderness, are not circumstances to excite suspicion of his motives. 2. The difference in age and experience between the brothers was trivial. There was evidently a total absence of concert between the three purchasing masters; and the weight of evidence is,, that the Junior got the greatest amount of bone. 3. The relation between Jonas and Philander Winters, coupled with the omission of Jonas to secure for himself any advantage over the others, and his letting the wreck go to a stranger for $5, conclusively repel every suggestion of this kind. They also present a vivid picture of the extraordinary condition of things produced by a shipwreck in the Arctic regions. 4. The small price given for the wreck is like what frequently happens at regular auction sales with full competition. (7 Law Reporter, 378; 6 Cowen’s Rep., 271.) 5. The resort to the forms of an auction may indeed have been idle, as there were not purchasers enough to take the whole, and so, necessarily, no competition; but, pursuing imitatively the practice in the world, is not alone adequate proof that these Polar wanderers were seeking to color the transaction. V. None of the preceding propositions are affected by the testimony of Reeve and Cherry. 1. They are interested in the result, and actual prosecutors of the claim. Their testimony should be wholly rejected as incompetent, because of their interest. (The Boston, 1 Sumner, 328.) They are evidently un candid, self-impeached in a considerable degree, and are contradicted in many particulars. (The Jane, 2 Hagg, 338; The Boston, 1 Sumner, 345.) second Point.—The decree of the Circuit Court appears to borrow some of its principles from analogy to the position, assumed as law, that a contract between salvors and the salved, made at sea, is necessarily and per se void. Such is not the case; and the most that can be said on that head is, that the nature of the subject gives apparently more occasion to the 154 SUPREME COURT. Post et al. v. Jones et al. “chancery of the sea” than the chancery of the land, to vacate oppressive and unreasonable contracts. 1. There are two obiter dicta to that effect in 1 Bee, (pp. 136, 139 ;) but the English authorities, and those in the American admiralty, including this court, are merely that such agreements must appear to be fair and reasonable. (The True Blue, 2 W. Rob., 176; The Graces, 2 W. Rob., 294; The Westminster, 1 W. Rob., 235; The Industry, 3 Hogg, 205; The Mul-grave, 2 Hogg, 77; The Emulous, 1 Sumner, 210, 211; Houseman v. Sch. North Carolina, 15 Peters, 45.) Third Point.—The libellants err in supposing that the law of nature, which enforces the saving of life as a duty, has any force in relation to the saving of property. (The Boston, 1 Summer, 335, 336; The Zephyr, 2 Hogg, 43; The Ganges, 1 Notes of Cases, 87 ; The Margaret, 2 Hagg, 48, note.) Fourth Point.—It is not, as claimed by the libellants, a fixed and invariable rule, that salvage, in cases of derelict, shall not exceed one-half the value; and, if such appeared to be the rule in all former decisions, the present is a new case in all its features, and would require a higher compensation. I. This moiety practice has a very barbarous origin, and is entitled to no respect. The authorities all show that it has no binding force, the allowance being merely discretionary. (The Aquila, 1 C. Rob., 41, 47, and note; 1 Sumner, 214, 215; 1 Story, 323; 1 Ware, 39 ; The Huntress, 1 Wallace, jr., 70.) H. The instances of salvage, service to be found in the books are confined to the highways of commerce, and within comparatively narrow spaces. There is no recorded judgment upon the salvage, to oe allowed for rescuing property from shipwreck, under circumstances at all comparable with the present case. (The Martha, 3 Hagg, 434; Elliotta, 2 Dodson, 75; The Effort, 3 Hagg, 166; L’Esperance, 1 Dodson, 49; Sprague v. 140 Bbls. Flour, 1 Story, 197; Peisch v. Ware, 4 Cranch, 346; The Reliance, 2 Hagg, 90, note; The Jubilee, 3 Hagg, 43, note; The Jonge, 5 Ch. Rob., 322 ; Howland v. 210 Bbls. Oil, 7 Law Rep., 377 ; The Swan, 1W. Rob., 70.) - — * . Fifth Point.—1The power of the master to sell in a case of extreme necessity, allows him to sell as he may. In the Polar regions, where, by an invincible and irreversible law of nature, it is impossible to perform the duty of agent for all concerned, in the methods usually employed within the territory ot trade and civilization, he may still save what can be saved, by using such means as present themselves. Jfr. Lord, for the appellees, made the following points: DECEMBER TERM, 1856. 155 Post et al. v. Jones et al. First Point.—1. The whole transaction was, in its nature a salvage from a ship in hopeless distress on the high seas, and near an uninhabited coast; with a master and crew dependent on the other ships; which master was willing and had offered to give all the cargo, in order to be taken directly home, after a three years voyage. It therefore belongs to courts of admiralty to judge it by its own rules of humanity, policy, and justice. 2. In all cases within the admiralty jurisdiction, the court, as the chancery of the sea, supervises all attempted contracts, where distress of a ship or her crew enter into the transaction. 3. To allow contracts between parties dependent for salvage service and salvors to be valid, would defeat the jurisdiction of admiralty entirely. (Cowel v. The Brothers; Schultz v. The Mary, Bee’s Rep., 136, 137; The Emulous, 1 Sumn. C. C. R., 210; The Henry Ewbank, 1 Sumn., 416; Bearse v. 340 Pigs Copper, 1 Story R., 323; Laws of Oleron, Ch. IV, (Godolphin, art. 4; 1 Peters Adm., App., art. 4 and art. 9;) The Packet, 3 Mason R., 253, 260 ; La Isabel, 1 Dodson, 273; The Augusta, 1 Dodson, 283; 8 Jurist, 716; The Westminster, 1W. Rob., 230.) Second Point.—The form of sale attempted to be made the means of divesting the property of the wrecked ship and cargo, was invalid in law; and, in substance and in circumstance, fraudulent as to the owners of the property. 1. There was no market nor any market value at the time and place of sale, whereby the form of a sale could afford any test of actual value. There was no competition, or expectation of it, by those who were to attend the sale; and the whole question of adequacy of price or reasonableness of conduct is as open as it would have been without the formality; it remains purely a question of salvage. (The Tilton, 5 Mason R., 477; The Sarah Ann, 2 Sumner, 217, S. C., 13 Peters R., 402.) 2. The form of a sale was contrived, arranged, and conducted, not by the master of the wrecked ship, but by his brother, the master of the saving ship, and his associates, masters of the other ships, to whom the master of the wrecked ship had offered to abandon all, for the sake of ,a speedy passage home. The master of the wrecked ship exercised no power of sale or other power whatever; he was throughout passive, and without the spirit or means of resistance to any demand whatever. The absence of all arrangement to protect the interest of the sellers, as to quantity, security for price, means of examination of detail and mode of selling, would have avoided this iorm of a sale, if made under any circumstances. In all particulars of quantity saved, value of property, probability of recovery, or of loss, the transaction remains wholly open to be adjudged as in a case of salvage. 156 SUPREME COURT. Post et al. v. Jones et al. Third Point.—The salvage awarded was liberal, and fully and generously sufficient. 1. There was no danger worth remunerating; none beyond any shore salvage. 2. There was no generosity of motive in the salvors; but, on the contrary, there was an attempt to avoid the adjudication of the appropriate salvage tribunal, and actually to secrete the whalebone, the part of the saved property most valuable for the purpose of transportation home. 3. The attempt to show that it was as well to fill up the ships by catching whales and trying out the oil, as by taking oil and whalebone already prepared and at hand, entirely failed, and is intrinsically incredible. 4. The relations between the parties to the wrecked ship and cargo and the two saving ships, should have prevented, and should prevent, the latter from stripping the former, whether by a pretended sale or on a real claim of salvage. 5. The appellate court will not disturb an adjudication of salvage, unless largely erroneous. (The Sybil, 4 Wheaton, 98; Hobart v. Drogan, 10 Peters R., 108.) Mr. Justice GRIER delivered the opinion of the court. The libellants, owners of the ship Richmond and cargo, filed the libel in this case for an adjustment of salvage. They allege, that the ship Richmond left the port of Cold Spring, Long Island, on a whaling voyage to the North and South Pacific Ocean, in July, 1846; that on the 2d of August, 1849, in successful prosecution of her voyage, and having nearly a full cargo, she was run upon some rocks on the coast of Behring’s Straits, about a half mile from shore; that while so disabled, the whaling ships Elizabeth Frith and the Panama, being in the same neighborhood, and about to return home, but not having full cargoes, each took on board some seven or eight hundred barrels of oil and a large quantity of whalebone from the Richmond; that these vessels have arrived in the port of Sag Harbor, and their owners are proceeding to sell said oil, &c., without adjusting or demanding salvage, unjustly setting up a pretended sale of the Richmond and her cargo to them by her master. w . „ The libellants pray to have possession delivered to them ot the oil, &c., or its proceeds, if sold, subject to “salvage and freight.” ■ ' The claimants, who are owners of the ships Frith and Panama, allege, in their answer, that the Richmond was wholly and irrevocably wrecked; that her officers and crew had abandone Jier, and gone on a barren and uninhabited shore near by; tnat DECEMBER TERM, 1856. 157 Post et al. v. Jones et al. there were no inhabitants or persons on that part of the globe, from whom any relief could be obtained, or who would accept her cargo, or take charge thereof, for a salvage compensation; that the cargo of the Richmond, though valuable in a good market, was of little or no value where she lay; that the season during which it was practicable to remain was nigh its close; that the entire destruction of both vessel and cargo was inevitable, and the loss of the lives of the crew almost certain; that, under these circumstances, the master of the Richmond concluded to sell the vessel at auction, and so much of her cargo as was desired by the persons present, which was done on the following day, with the assent of the whole ship’s company. Respondents aver that this sale was a fair, honest, and valid sale of the property, made from necessity, in good faith, and for the best interests of all concerned, and that they are the rightful and bona fide owners of the portions of the cargo respectively purchased by them. The District Court decreed in favor of claimants; on appeal to the Circuit Court, this decree was reversed; the sale was pronounced void, and the respondents treated as salvors only, and permitted to retain a moiety of the proceeds of the property as salvage. The claimants have appealed to this court, and the questions proposed for our consideration are, 1st, whether, under the peculiar circumstances of this case, the sale should be treated as conferring a valid title; and, if not, 2d, whether the salvage allowed was sufficient. , * 1. In the examination of the first question, we shall not inquire whether there is any truth in the allegation that the master of the Richmond was in such a state of bodily and mental infirmity as to render him incapable of acting; or whether he was governed wholly by the undue influence and suggestions of his brother, the master of the Frith. For the decision of this point, it will not be found necessary to impute to him either weakness of intellect or want of good faith. It cannot be doubted that a master has power to sell both vessel and cargo in certain cases of absolute necessity. This, though now the received doctrine of the modern English and American cases, has not been universally received as a principle of maritime law. The Consulado del Mare (art. 253) allows the master a power to sell, when a vessel becomes unseaworthy from age; while the laws of Oleron and Wisby, and the ancient Jb rench ordinances, deny such power to the master in any case, ihe reason given by Valin is, that such a permission, under any circumstances, would tend to encourage fraud. But, while the power is not denied, its exercise should be closely scruti- 158 SUPREME COURT. Post et al. v. Jones et al. nized by the court, lest it be abused. Without pretending to enumerate or classify the multitude of cases on this subject, or to state all the possible conditions under which this necessity may exist, we may say that it is applied to cases where the vessel is disabled, stranded, or sunk; where the master has no ineans and can raise no funds to repair her so as to prosecute his voyage; yet, where the spes recuperandi may have a value in the market, or the boats, the anchor, ot the rigging, are or may be saved, and have a value in market; where the cargo, though damaged, has a value, because it has a market, and it may be for the interest of all concerned that it be sold. All the cases assume the fact of a sale, in a civilized country, where men have money, where there is a market and competition. They have no application to wreck in a distant ocean, where the property is derelict, or about to beeome so, and the person who has it in his p'ower to save the crew and salve the cargo prefers to drive a bargain with the master. The necessity in such a case may be imperative, because it is the price of safety, but it is not of that character which permits the master to exercise this power. As many of the circumstances attending this case are peculiar and novel, it may not be improper to give a brief statement of them. The Richmond, after a ramble of three years on the Pacific, in pursuit of whales, had passed through the sea of Anadin, and was near Behring’s Straits, in the Arctic ocean, on the 2d of August, 1849. She had nearly completed her cargo, and was about to return; but, during a thick fog, she was run upon rocks, within half a mile of the shore, and in a situation from which it was impossible to extricate her. The master and crew escaped in their boats to the shore, holding communication with the vessel, without much difficulty or danger. They could probably have transported the cargo to the beach, but this would have been unprofitable labor, as its condition would not have been improved. Though saved from the ocean, it would not have been safe. The coast was barren; the few inhabitants, savages and thieves. This ocean is navigable for only about two months in the year; during the remainder of the year it is sealed up with ice. The winter was expected to commence within fifteen or twenty days, at farthest. The nearest port of safety and general commercial intercourse was at the Sandwich Islands, five thousand miles distant. Their only hope of escape from this inhospitable region was by means of other whaling vessels, which were.known to be cruising at no great distance, and who had been in company with the Richmond, and had pursued the same course. On the 5th of August the fog cleared off, and the ship Eliza DECEMBER TERM, 1856. 159 Post et al. v. Jones et al. beth Frith was seen at a short distance. The officers of the Richmond immediately went on board, and the master informed the master of the Frith of the disaster which had befallen the Richmond. He requested him to take his crew on board, and said, “You need not whale any more; there is plenty of oil there, which you may take, and get away as soon as possible.” On the following day they took on board the Frith about 300 barrels oil from the Richmond. On the 6th, the Panama and the Junior came near; they had not quite completed their cargoes; as there was more oil in the Richmond than they could all take, it was proposed that they also should complete their cargoes in the same way. Captain Tinkham, of the Junior, proposed to take part of the crew of the Richmond, and said he would take part of the oil, “ provided it was put up and sold at auction.” In pursuance of this suggestion, advertisements were posted on each of the three vessels, signed by or for the master of the Richmond. On the following day the forms of an auction sale were enacted; the master of the Frith bidding one dollar per barrel for as much as he needed, and the others seventy-five cents. The ship and tackle were sold for five dollars; no money was paid, and no account kept or bill of sale made out. Each vessel took enough to complete her cargo of oil and bone. The transfer was effected in a couple of days, with some trouble and labor, but little or no risk or danger, and the vessels immediately proceeded on their voyage, stopping as usual at the Sandwich Islands. Now, it is evident, from this statement of the facts, that, although the Richmond was stranded near the shore upon which her crew and even her cargo might have been saved from the dangers of the sea, they were really in no better situation as to ultimate, safety than if foundered or disabled in the midst of the Pacific ocean. The crew were glad to escape with their lives. The ship and cargo, though not actually derelict, must necessarily have been abandoned. The contrivance of an auction sale, under such circumstances, where the master of the Richmond was hopeless, helpless, and passive—where’ there was no market, no money, no competition—where one party had absolute power, and the other no choice but submission-*-where the. vendor must take what is offered or get nothing—is a transaction which has no characteristic of a valid contract. It has been contended by the claimants that it would be a great hardship to treat this sale as a nullity, and thus compel ^eni as8ume the character of salvors, because they were not bound to save this property, especially at so great a distance from any port of safety, and in a place where they could have completed their cargo in a short time from their own 160 SUPREME COURT. Post et al. v. Jones et al. catchings, and where salvage would be no compensation for the loss of this opportunity. The force of these arguments is fully appreciated, but we think they are not fully sustained by the facts of the case. Whales may have been plenty around their vessels on the 6th and 7th of August, but, judging of the future from the past, the anticipation of filling up their cargo in the few days of the season in which it would be safe to remain, was very uncertain, and barely probable. The whales were retreating towards the north pole, where they could not be pursued, and, though seen in numbers on one day, they would disappear on the next; and, even when seen in greatest numbers, their capture was uncertain. By this transaction, the vessels were enabled to proceed at once on their home voyage; and the certainty of a liberal salvage allowance for the property rescued will be ample compensation for the possible chance of greater profits, by refusing their assistance in saving their neighbor’s property.. It has been contended, also, that the sale was justifiable and valid, because it was better for the interests of all concerned to accept what was offered, than suffer a total loss. But this argument proves too much, as it would justify every sale to a salvor. Courts of admiralty will enforce contracts made for salvage service and salvage compensation, where the salvor has not taken advantage of his power to make an unreasonable bargain; but they will not tolerate the doctrine that a salvor can take the advantage of his situation, and avail himself of the calamities of others to drive a bargain; nor will they permit the performance of a public duty to be turned into a traffic of profit. (See 1 Sumner, 210.)- The general interests of commerce will be much better promoted by requiring the salvor to trust for compensation to the liberal recompense usually awarded by courts for such services. We. are of opm-ion, therefore, that the claimants have not obtained a valid title to the property in dispute, but must be treated as salvors. 2. As to the amount of salvage. While we assent to the general rule stated by this court, in Hobart v. Dorgan, (10 Peters, 119,) that “it is against policy and public convenience to encourage appeals of this sort in matters of discretion,” yet it is equally true, that where the law gives a party an appeal, he has a right to demand the conscientious judgment of the appellate court on every question arising in the cause. Hence many cases are to be found where the appellate court have either increased or diminished the allowance of salvage originally made,, even where it did no “violate any of Hie just principles which should regulate subject.” (See The Thetis, 2 Knapp, 410.) DECEMBER TERM, 1856. 161 Post et al. v. Jones et al. ■Where it is not fixed by statute, the amount of salvage must necessarily rest on an enlarged discretion, according to the circumstances of each case. The case before us is properly one of derelict. In such cases, it has frequently been asserted, as a general rule, that the compensation should not be more than half nor less than a third of the property saved. But we agree with Dr. Lushington, (The Florence, 20 E. L. and C. R., 622,) “that the reward in derelict cases should be governed by the same principles as other salvage cases—namely, danger to property, value, risk of life, skill, labor, and the duration of the service;” and that “no valid reason can be assigned for fixing a reward for salving derelict property at a moiety or any given proportion; and that the true principle is, adequate reward, according to the circumstances of the case.” (See, also, The Thetis, cited above.) The peculiar circumstances of this case, which distinguish it from all others, and which would justify the most liberal allowance for salvage, is the distance from the home port, twentyseven thousand miles; and from the Sandwich Islands, the nearest port of safety, five thousand miles. The transfer of the property from the wreck required no extraordinary exertions or hazards, nor any great delay. The greatest loss incurred was the possible chance, that before the season closed in, the salving vessels might have taken a full cargo of their own oil. But we think this uncertain and doubtful speculation will be fairly compensated by the certainty of a moiety of the salved property at the first port, of safety. The libellants claim only the balance, “after deducting salvage and freight," conceding that, under the circumstances, the salvors were entitled to both. When the property was brought to a port of safety, the salvage service was complete, and the salvors should be allowed freight for carrying the owners’ moiety over twenty thousand miles to a .better market, at the home port. As this case has presented very unusual circumstances, and as we . think the claimants have acted in good faith in making their defence, all the taxed costs should be paid out of the fund in court. The case is therefore remitted to the Circuit Court, to have the amount due to each party adjusted, according to the principles stated. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of Kew. York, and was argued by counsel- vol. xix. 11 162 SUPREME COURT. Dupont de Nemours $ Co. v. Vance et al. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to have the amount due to each party adjusted, according to the principles stated in the opinion of this court, and that all the costs of said cause in this court, and in the Circuit and District Courts, be paid out of the fund in the said Circuit Court. E. J. Dupont de Nemours & Co., Libellants and Appellants, v. John Vance et al., Claimants of the Brig Ann Elizabeth. To be seaworthy as respects cargo, the hull of a vessel must be so tight, stanch, and strong, as to resist the ordinary action of the sea during the voyage, without damage or loss of cargo. A jettison, rendered necessary by a peril of the sea, is a loss by such peril within the meaning of the exception contained in bills of lading—aliter, if unseaworthiness of the vessel caused or contributed to the necessity for the jettison. The owner of cargo jettisoned has a maritime lien on the vessel for the contributory share due from the vessel on an adjustment of the general average, which lien may be enforced by a proceeding in rem in the admiralty. Where the libel alleged a shipment of cargo under a bill of lading, and its non-delivery, and prayed process against the vessel, and the ans\ver set up a jettison rendered necessary by a peril of the sea, and this defensive allegation was sustained by the court, it was held that the libellant was entitled to a decree for the contributory share of general average due from the vessel. "There are no technical rules of variance or departure in pleading in the admiralty. This was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in admiralty. As many points were decided by this court which were not ■raised in the court below, it is proper to explain to the. reader how this happened; and this will best be done by tracing the ^history of the case from its commencement. In December, 1852, Dupont de Nemours & Co. shipped at their wharf, on the river Delaware, an invoice of gunpowder in kegs, &c., the value at the place of shipment being, by the invoice, $6,325. The articles were shipped on board the Ann Elizabeth, bound to New Orleans, and owned by the claimants in this cause. Two bills of lading were signed by the mate, and delivered to the shippers. The brig sailed on December 21 1852. After the arrival of the vessel at New Orleans, the shippers DECEMBER TERM, 1856. 163 Dupont de Nemours $ Co. v. Vance et al. filed a libel in the District Court of the United States for the eastern district of Louisiana, alleging that the following packages were missing, viz: 972 kegs powder, at $4.50 ------ $4,374.00 563 half do. 2.37J - ----- 1,337.13 99 quarter-kegs, 1.33J ------ 132.41 12 cases canister, 7.75 - - -, - - - 93.00 1,646 packages. $5,936.54 The libellants therefore held the vessel to her general responsibility for the non-delivery of the articles, and filed the bills of lading as exhibits. After the usual proceedings in admiralty, John Vance, master and part owner of the brig, intervening for his own interest, and for the interest of the other owners of the brig, filed his answer in June, 1853. In this answer, he gave a narrative of the voyage, and alleged that the articles in question were thrown overboard for the safety of the vessel, and “that unless the same had been thrown over, your respondents believe, and so allege, that the vessel would have filled and gone down.” This answer was sworn to by the proctor and agent of respondent, as being true to the best of his belief or knowledge. Evidence was taken on both sides. For the libellants, it consisted of the testimony of two persons in Delaware to prove the shipment, and the testimony of two persons in New Orleans to prove the unseaworthiness of the vessel, from examin-ations made after her arrival. For the claimants, the evidence consisted of the notarial pro-„ test of the captain, mate, and three of the crew; and also the testimony of a stevedore, who unloaded the vessel, to show her sound condition. Upon this evidence, the cause came on for trial, when the district decreed against the stipulators for $5,936.54, less $270.95 freight, equal to $5,665.59, with interest from 15th January, 1853, and costs. Upon motion of the proctor for the claimants, a rehearing was granted, and fresh evidence was taken. On the part of ne libellants, it consisted of the depositions of two persons lving m New Orleans, to prove the value of the powder; and on>tne part of the claimants, the depositions of three persons ivmg m New Orleans, who were not on board of the ship du-riI^.T~e voyage. Two testified to the condition of the vessel, third to some proceedings respecting an average bond. With this additional evidence, the case came up again, when 164 SUPREME COURT. Dupont de Nemours if Co. v. Vance et al. the district judge decided that the notarial protest must be rejected as evidence, and that, upon its being thrown out, there was nothing at all to prove the fact of the jettison. He therefore adhered to his former decree. The claimants appealed to the Circuit Court. In the Circuit Court, additional evidence was taken on the part of the claimants, viz: the depositions of five persons, two of whom were not on board, but testified as experts; and of the three who were on board, two were passengers, and the third was one of the crew. These three testified to the fact of the jettison, and the circumstances under which it was made, and gave a narrative of the voyage. When the case came up for trial before the circuit judge, he decreed that the claimants had sustained their answer, and dismissed the libel, each party paying his own costs. The libellants appealed to the court. It was argued by Mr. Gerhard for the appellants, and Mr. Bayard for the claimants. > Mr. Gerhard contended— 1. That the vessel was not seaworthy at the commencement of the voyage, and that therefore the owners were responsible for the total loss of the articles thrown overboard. 2. That there was such a neglect of proper precaution during the voyage as to make the vessel responsible. 3. That if the vessel should be held to have been seaworthy, and the jettison should be deemed to have been justified by the violence of the seas, still it was the duty of the master, on his arrival at the port of destination, to have the general average adjusted for a general contribution. (3 Kent’s Com., 244; 11 Johnson, 323; Abbott on Shipping, part IV, chap. X, sec. 14, 5th American Ed., p. 611, note 1; 3 Sumner, 308.) z The argument on this point was concluded thus: Now, it is admitted by the respondents that the libellants should be paid for their goods which were jettisoned. They are entitled to be recompensed, either in whole by the captain and owners of the brig, or in part by the contribution of the ship, freight, and cargo, in general average. But how can the libellants proceed to collect their pro rata contribution in gen-eral average, when, by the acts of the captain, his gross fault and inexcusable negligence, they are entirely precluded from pursuing this course? Where is the bond to secure them. How many of the consignees are mere agents for merchants living along the whole Mississippi valley ? . How many are insolvent? What are their names? Why did not the claim DECEMBER TERM, 1856. 165 Dupont de Nemours Co. n. Vance et al. ants deposit in court the amount they acknowledge they owe by the statement of their own adjuster? This neglect of the captain has made the owners liable. (See La Code 2, 972; 4 Boulay Paty, 592-’3.) Jfr. Bayard's points were the following: First. The brig was seaworthy at the time she commenced her voyage, being sufficient in all respects for the voyage, well manned, and furnished with sails and all necessary furniture, and, being so, reasonably sufficient for the voyage, the necessity for the jettison of part of the cargo, to save the vessel and the residue of the cargo, cannot be met by the allegation, that, with a stouter vessel, or one better manned, the necessity for the jettison might not have occurred. (Conkling’s Adm., pp. 164, 165; 1 Curtis, pp. 155, 156.) Second. The testimony shows that the necessity for the jettison did not arise from the worm-holes which were discovered after the arrival of the vessel in port, as the pumps were abundantly able to overcome any danger which could possibly arise from such a source. Third. The failure of the master to use proper exertions to have the average account adjusted, does not render the brig or owners liable for the loss by jettison, nor is any claim made in the libel for an’ alleged negligence of the master in this respect. Fourth. The claim of the libellants for contribution against the other shippers and the owners, is not affected by the laches of the .master, but the contribution may be recovered either by a suit in equity against all, or by several suits at law against each party who ought to contribute; nor is the right of the sufferer affected by the delivery of the cargo to the respective consignees without taking an average bond. (Abb. on Ship., Fifth. The measure of damages, where the contract of affreightment is not performed, is properly the value of the goods at the port of shipment, with interest for the time when they ought to have been delivered. (Conk. Adm., p. 185, et Mr. Justice CURTIS delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the U Th Spates for the eastern district of Louisiana. , . $ libel alleges that the appellants shipped on board the brig Ann Elizabeth, at Wilmington, in the State of Delaware, ? targe quantity of gunpowder, to be carried to New Orleans, lu the State of Louisiana; and that, on the shipment thereof, 166 SUPREME COURT. Dupont de Nemours § Co. v. Vance et al. bills of lading, in the usual form, were signed by the master of the brig; that, according to the invoices of the merchandise specified in the bills of lading, its value was $7,233.75; that, on the arrival of the brig at New Orleans, the libellants required the delivery of the merchandise thus shipped, but they received only a part thereof; and that the part not delivered consisted of 1,646 packages, which, according to the same invoice valuation, amounted to the sum of $5,936.54. The libel further alleges that no part of that sum has been paid to the libellants; and it prays process against the brig, and a decree for the damages thus demanded, and for such other relief as shall to law and justice appertain. The master of the brig, intervening for his own interest and that of his part-owners, admits that the shipment of goods was made, as alleged in the libel; but propounds that, in the course of the voyage, it became necessary, for the safety of all concerned, through the perils and dangers of the seas, to make a jettison of that part of the libellant’s goods which were shipped and not delivered. The first question is, whether the claimant has shown, in support of his defensive allegation, that the jettison was occasioned by a peril of the sea. If it was, then the carrier is exonerated from the delivery of the merchandise, and has only to respond for that part of its value which is hts just contributory share towards indemnity for the common loss by the jettison. A jettison, the necessity for which was occasioned solely by a peril of the sea, is a loss by a peril of the sea, and within the exception contained in the bill of lading. But, if the unseaworthiness of the vessel, at the time of sailing on the voyage, caused, or contributed to produce, the necessity for the jettison, the loss is not within the exception of perils of the seas. That there was such a necessity for this jettison as justified the master in making it, we think, is proved. In the case, of Lawrence v. Minturn, (17 How., 109,) this court had occasion to consider the extent of the authority of the master to make a jettison. We then held, that “ if he was a competent master; if an emergency actually existed, calling for a decision whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision, with due deliberation, by a fair exercise of his skill and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common, safety, because the person to whom the law has intrusted authority to decide upon and make it, has duly exercised that authority.” DECEMBER TERM, 1856. 167. Dupont de Nemours y C°- v. Vance et al. We find the case at bar is within this rule. We do not detail the evidence, because the authority, of the master to make the jettison has not been seriously controverted. This part of the case turns upon the other inquiry, whether the vessel was unseaworthy for the voyage when it was begun. It is the hull of the vessel which is alleged to have been unseaworthy. To constitute seaworthiness- of the hull of a Vessel in respect to cargo, the hull must be so tight, stanch, and strong, as to be competent to resist all ordinary action of the sea, and to prosecute and complete the voyage without damage to the cargo under deck. If a vessel, during the voyage, has leaked so much as to injure the cargo, or render a jettison of it necessary, one mode of testing seaworthiness is, to ascertain what defects, occasioning leakage, were found in the vessel at the end of the voyage; and then to inquire which of those defects are attributable to perils of the seas, encountered during the voyage, and which, if any, existed when it was begun; and, if any of the latter be found, the remaining inquiry is, whether they were such as to render the vessel incompetent to resist the ordinary attacks of the sea, in the course of the particular voyage, without damage or loss of cargo. This vessel, or? her arrival at New Orleans, was taken into dock, and examined. She was found to be a new vessel, and that she had been strained. A but, about midships, at or near the third or fourth streak, was started. The hood-ends forward were also strained, and, on trial, it was found they would take about a thread of oakum. Two worm-holes were also found in her bow, about three-eighths of an inch in diameter—one about three streaks from the keel, the other a little higher up. As the vessel was new, there seems to be no doubt these holes were in the plank when put on the vessel, but from some cause remained undiscovered. The vessel sailed from Wilmington on the afternoon of the 21st of December, 1852. The wind being northeast and strong, the vessel came to anchor at Reedy Island, and on the 22d proceeded to sea. The master, being a part-owner and claimant, has not been examined. The first officer appears to have died before the proofs were taken in the Circuit Court. No account is given of the second officer or the crew, except one seaman, who, together with two passengers, have been examined on the part of the claimants, to prove the occurrences of the voyage. It would have been more satisfactory to have had the evidence of one or more officers of the vessel, and especially of the mate, with his log-book. Still, these three witnesses do satisfactorily show, that on the night of the 23d of December, 168 SUPREME COURT. Dupont de Nemours § Co. v. Vance et al. the brig encountered a strong gale and heavy seas, causing her to labor and strain badly. This weather continued, and the sea became more heavy, up to the night of the 27th. Until about 8 o’clock that night, it was not known the vessel was leaking; but, on sounding the pumps at that time, it was found that the vessel had two feet of water in the hold. The pumps were manned and kept going, but the leak increased two feet in about two hours. The jettison was then made, and the vessel so far relieved that the pumps could control the leak, and the vessel, with the residue of the cargo, arrived at New Orleans. It is manifest that the vessel encountered extraordinary action of the sea; and, as the vessel appears to have been new, and generally stanch and well fastened, the defects found at New Orleans, except the worm-holes, are fairly attributable to this cause. The starting of a but, and the opening of the hood-ends of a new vessel of ordinary strength, indicate a very uncommon degree of strain; and such defects would alone account for the amount of leakage of a vessel heavily laden, and exposed to such a sea as is described. We do not think the existence of the worm-holes amount to unseaworthiness. Any leak which might have been occasioned by them in any ordinary sea, does not appear to have been such as the pumps could not control, without damage to the cargo. All vessels have leaks; and, independent of the strains received from the violent action of the sea, we are not satisfied this vessel would have leaked so much that the pumps could not have controlled the water in her hold, and prevented its doing damage to the cargo; We find, therefore, that the vessel is exonerated from the claim for the full value of the merchandise; and the remaining question is, whether the vessel is chargeable with any part of the value of the merchandise in this cause. When a lawful jettison of cargo is made, and the vessel and its remaining cargo are thereby relieved from the impending peril, and ultimately arrive in the port of destination, though the shipper has not a lien on the vessel for the value of his merchandise jettisoned, he has a lien for that part of its value which the vessel and its freight are bound to contribute towards his indemnity for the sacrifice which has been made for the common benefit. And this lien on the vessel is a maritime lien, operating by the maritime law as a hypothecation of the vessel, and capable of being enforced by proceedings in rem. The right of the shipper to resort to the vessel for claims growing directly out of his contract of affreightment, has very long existed in the general maritime law. It is found asserted DECEMBER TERM, 1856. 169 Dupont de Nemours § Co. v. Vance et al. in a variety of forms in the Consulado, the most ancient and important of all the old codes of sea laws, (see chaps. 63, 106, 227, 254, 259;) and the maxim that the ship is bound to the merchandise, and the merchandise to the ship, for the performance of the obligations created by the contract of affreightment, is a settled rule of our maritime law. (The Schooner Freeman, 18 How., 182; The Ship Packet, 3 Mason, 261; The Volunteer, 1 Sum., 550; The Reeside, 2 Sum., 467; The Rebecca, Ware’s R., 188; The Phcpebe, Ib., 263; The Waldo, Davies’s R., 161; The Gold Hunter, 1 Blatch. and How., 305.) Pothier declares (Treatise of Charter-parties, preliminary chapter on Average) that the right to contribution in general average is dependent on the contract of affreightment, which embraces in effect an undertaking, that if the goods of the shipper are damaged for the common benefit, he shall receive a due indemnity by contribution from the owners of the ship, and of other merchandise benefited by the sacrifice. The power and duty of the master to retain and cau^e a judicial sale of the merchandise saved, has also been long established. (Consulado del Mare, ch. 51, 52, 53, and note 1 in vol. 3, p. 103 of Pardessus’s Collection; Laws of Oleron, art. 9; Ord. de la Marine, Liv. 3, tit. 8, sec. 21, 25; Nesbit on Ins., 135; Strong v. New York Firemen’s Insurance Company, 11 John. R., 323; Simonds v. White, 2 B. and C., 805; Loring v. The Neptune Insurance Company, 20 Pick., 411; 3 Kent. Com., 243, 244.) And this right to enforce a judicial sale, through what we term a lien in rem, is not confined to the merchandise, but extends to the vessel. Emerigon, (ch. 12, sec. 43,) speaking generally of an action of contribution, says it is in its nature a real action. Cassaregis, (dis. 45, N. 34,) “est in rem scripta” It would be extraordinary if the right to a lien were not reciprocal; if it existed in favor of the vessel, when sacrifice was made of part or the whole of its value, for preservation of the cargo, and not against the vessel, when sacrifice was made of the cargo for preservation of the vessel. Byancient admiralty law; the master could bind both the ship and cargo by an express hypothecation, to obtain a ransom on capture. So he could, and still may, when the whole enterprise has fallen into distress, which could not otherwise be relieved, hypothecate both the vessel and cargo o obtain means of relief. These are cases of express hypothecation made by the master, under the authority conferred on im by the maritime law; but he can also sell a part of the cargo to enable him to prosecute his voyage, or deliver a part ° it in payment of ransom of his vessel, and the residue of the 170 SUPREME COURT. Dupont de Nemours $ Co. v. Vance et at. cargo, on capture; and when he does so, the law of the sea creates a lien on the vessel, as security for the reimbursement of the loss of the shipper whose goods have been sacrificed. (The Packet, 3 Mason, 255; Pope v. Nickerson, 3 Story’s R., 492; The Gold Hunter, 1 Blatch. and How,, 300; The Boston, lb., 309; Consol, del Mare, ch. 105; Laws of Oleron, art. 25; Ord. of Antwerp, art. 19; Emerigon Con. a la Grosse, ch. 4, secs. 9, 11.) The authority to make a jettison of cargo is derived from the same source; an instant necessity, incapable of being provided for save by a sacrifice of part of what is committed to the master’s care, and the presumed consent of the owners of all the subjects at risk, that the loss shall become a charge upon what is benefited by the sacrifice. (The Gratitudine, 3 Rob., 210.) If the sacrifice be made to enable the vessel to perform the voyage, by paying what the owners are bound to pay to complete it, the charge is on the vessel and its owners. If it be made to relieve the adventure from a peril which has fallen on all the subjects engaged in it, the risk of which peril was not assumed by the carrier, the charge is to be borne pro-portionably by all the interests, and there is a lien on each to the extent of its just contributory obligation. This authority of the master to make the sacrifice, and this consent of the owners of the subjects at risk to have it made, and their implied undertaking to contribute towards the loss, are viewed by the admiralty law as sufficient to create an hypothecation of the subjects benefited, for the security of the payment of the several sums for which those subjects are respectively liable. In other words, as the master is authorized to relieve the . adventurer from distress, by means of an express hypothecation, in case of capture or distress in port, or by means of a sale of part of the cargo, thereby creating a maritime lien on the property ultimately benefited, in favor of the owner of what is sold or hypothecated; so he may also, in a case of necessity at sea, make a jettison of cargo, and thereby create a lien on the property thus saved from peril. Pothier (Con. Mar., n., 34, 72) and Emerigon (Con. a la Grosse, ch. 4, sec. 9) say .that the sale of part of the cargo in port, to .supply the necessities of the ship, is a kind of forced loan. Though the sacrifice, of part of the cargo at sea cannot be considered a loan, it is a forced appropriation of it to the general benefit of those engaged in a common adventure, under a contract of affreightment; and such use of the property of one, for the benefit of others, creates a charge on what was thus saved, for what, may fairly be termed the price of that safety. (Abbott on Shipping, part 4, ch. 10, s. 6.) DECEMBER TERM, 1856. 171 Dupont de Nemours § Co. v. Vance et al. In United States v. Wilder, (3 Sumner, 311,) which was a case of general average, Mr. Justice Story likens it to a case of salvage, where safety is obtained by sacrifices of labor and danger, made for the common benefit; and he says the general maritime law gives a lien in rem for the contribution, not as the only remedy, but as in many cases the best remedy, and in some cases the only remedy. In the District and Circuit Courts of the United States, this jurisdiction has been exercised, and some cases of this kind are found in the books, though most of their decisions are not in print. (The Mary, 5 Law Reporter, 75; 6 lb., 73; The Cargo of the George, 8 Law Reporter, 361; Sparks v. Kittredge, 9 Law Reporter, 349; Dunlap’s Ad. Pr., 57 ; 2 Browne’s Civ. and Ad. Law, 122; The Packet; The Gold Hunter; The Boston, above cited.) The restricted admiralty jurisdiction in England seems insufficient to enforce this lien. (The Constantia, 2 W. Rob., 487.) Nor is there anything in*the case of Rae v. Cutler, decided by this court in 1849, and reported in 7 How., 729, which conflicts with the view we have now taken. That was a libel by the owner of a vessel against the consignee of cargo, to recover the contributory share of the average due from the goods which the master had voluntarily delivered to the respondent before the libel was filed. The court decided, that though the master, as the agent of the pwn-er of the vessel in that case, had by the maritime law a lien upon the goods, as security for the payment of their just contribution, this lien was lost by their voluntary delivery to the consignee; and that the implied promise to contribute could not be enforced by an action in personam against the consignee, in the admiralty. This admits the existence of a lien, arising out of the admiralty law, but ‘puts it on the same footing as a maritime lien oh cargo for the price of its transportation; which, as is well known, is waived by an authorized delivery without insisting on payment. On full consideration, we are of opinion that when cargo is lawfully jettisoned, its owner has, by the maritime law, a lien on the vessel for its contributary share of the general average compensation; and that the owner of the cargo may enforce payment thereof by a proper proceeding in rem against the vessel, and against the residue of the cargo, if it has not been delivered. The remaining question is, whether the pleadings in this case suc^ ^orm as to present this claim for the consideration oi this court, and entitle the libellant to assert a lien on the vessel for its contribution. The rules of pleading in the admiralty are exceedingly sim- • 172 SUPREME COURT. Dupont de Nemours § Co. v. Vance et al. pie and free from technical requirements. It is incumbent on the libellant to propound with distinctness the substantive facts on which he relies; to pray, either specially or generally, for the relief appropriate to them; and to ask for such process of the court as is suited to the action, whether in rem or in personam. It is incumbent on the respondent to answer distinctly each substantive fact alleged in the libel, either admitting or denying, or declaring his ignorance thereof, and to allege such other facts as he relies upon as a defence, either in part or in whole, to the case made by the libel. The proofs of each party must correspond substantially with his allegations, so as to prevent surprise. But there are no technical rules of variance, or departure in pleading, like those in the common law, nor is the court precluded from granting the relief appropriate to the case appearing on the record, and prayed for by the libel, because that entire case is not distinctly stated in the libel. Thus, in cases of collision, it frequently occurs that the libel alleges fault of the claimant’s vessel; the answer denies it, and alleges fault of the libellant’s vessel. The court finds, on the proofs, that both were in fault, and apportions the damages. Looking to this libel, we find it states that a contract of affreightment was made to transport these goods from Wilmington to New Orleans, on board this brig; that the goods were laden on board, and the brig had arrived, but only a part of the goods have been delivered. It states the value of the part not delivered, avers that the libellants have not been paid any part of that sum, prays for process against the brig, and a decree for the value of the merchandise not delivered, and also for such other relief as to law and justice may appertain. The answer admits all the facts stated in the libel, but sets up, by way of defensive allegation, a necessary jettison of that part of the cargo not delivered. It is manifest, that though this answers, in part, the claim for damages made by the libel, it does not wholly answer it. It shows sufficient cause why the libellant should not assert a lien on the brig for the whole value of his merchandise, but at the same time shows that the libellant has a valid lien on the brig for that part of the value of the merchandise which the vessel is bound to contribute. While it asserts that the performance of the contract of affreightment by transportation of the merchandise to New Orleans was excused by a peril of the sea, it admits that an obligation arose out of the relations of the parties created by that contract of affreightment, and out of the facts relied on as an excuse for not transporting the merchandise; that this DECEMBER TERM, 1856. 173 Dupont de Nemours § Co. v. Vance et al. obligation was to pay to the shipper a part of the value of his goods; that it was the duty of the master, at the port of New Orleans, to ascertain what part of that value the vessel was bound to contribute, and that there is a lien on the vessel to secure its payment. If the technical rules of common-law pleading existed in the admiralty, there might be difficulty in admitting a claim for general average, in an action founded on a contract of affreightment; because, though the claim for such average grows out of the contract of affreightment, the implied promise to pay it is technically different from the promise on the face of a bill of lading. In the case of Pope v. Nickerson, (3 Story, 465,) Mr. Justice Story went into a very extensive examination of such claims, under an agreed statement of facts, in an action of assumpsit on bills of lading; and it does not seem to have occurred, either to him or the counsel, that it was inconsistent with any substantial rule of the common law so to do. But in the admiralty, as we have said, there are no technical rules of variance or departure. The court decrees upon the whole matter before it, taking care to prevent surprise, by not allowing either party to offer proof touching any substantive fact not alleged or denied by him. But where, as in this case, the defensive allegation of the respondent makes a complete case for the libellant, so that no evidence in support of it is required, and where that case is within the form of action and the prayer of relief, and the process used by the libellant, we think it not a sufficient reason for refusing relief, that the precise case on which the court think fit to grant it is not set. out in the libel. We understand, that in the court below the libellants relied on the duty of the master to adjust and collect, and pay to them, the general average contributions, as precluding the defence of a necessary jettison. We think this defence was properly overruled. The libellants did not there insist on* their lien on the vessel for its contribution. We do not consider their failure to do so precludes them from calling on this court to make that decree, to which the record shows they are entitled. In Finlay v. Lynn, (6 Cranch, 238,) this court was of opinion that the appellant, whose bill was dismissed by the Circuit Court, was entitled to an account, on a ground not as-8un|ed in the Circuit Court. This court said: “The plaintiff probably did not apply for this account in the court below, vn no$ aPPear to have been a principal object of his bill. This court therefore doubted whether it would be most proper to affirm the decree dismissing the bill, with the addition that it should be without prejudice to any future claim 174 SUPREME COURT. Dupont de Nemours § Co. v. Vance et al. for profits, and for the debt due from one store to the other, or to open the decree and direct the account. The latter is deemed the more equitable course. The decree, therefore, is to be reversed, and the cause remanded, with directions to take an account of the profits of the jewelry store, if the same shall be demanded by the plaintiff.” But, as the libellants failed to call the attention of the Circuit Court to this view of their rights, and placed their claim there solely on the grounds that the jettison was unlawful, or, if lawful, could not be a defence, because the master had failed to do the duty incumbent on him in a case of general average, we think the decree should be reversed, without costs. The cause must be remanded to the Circuit Court, with directions to ascertain the amount of the lien of the libellants cm the Ann Elizabeth, for the share to be contributed by the vessel towards the loss sustained by the libellants, and to enter a decree accordingly. Mr. Justice CATRON and Mr. Justice CAMPBELL dissented. Mr. Justice CAMPBELL dissenting. I dissent from that part of the opinion of this court which allows to the libellants a decree against the libellee for the amount of his contributory share in the account of average. The libel is for the non-delivery of cargo according to the conditions of a bill of lading. The exemption claimed in the answer is, that the failure was occasioned by a peril of the seas, which made a jettison of the goods necessary; and this issue was tried in the District and Circuit Courts. The objection raised here is, that the exemption is not complete, unless the contributory share of the libellee, to be ascertained, in the first place, by the adjustment of an average account, is also admitted and tendered. In Bird v. Astcott, (Bulst., 280,) which was an action on the case against a carrier for the non-delivery of goods lost by a jettison, Coke, Lord Ch. J., cited a case which had been decided, and said, in respect to it, “We all did resolve, that this being the act of God, this sudden storm, which occasioned the throwing over of the goods, and which could not be avoided; and for this reason the plaintiff recovered nothing.” (Mouse’s case, 12 Co., 63.) I have not been able to find a precedent, either in the United States or Great Britain, where a contributory share, in.the. nature of average, has been recovered, in a contentious litigation, in an action on a bill of lading for the non-delivery of cargo. But the books of precedents show that average contributions DECEMBER TERM, 1856. 175 Dupont de Nemours $ Co. v. Vance et al. are recovered in actions, either of special or general assumpsit, the form of the action depending on the fact of the adjustment of the account. (2 Chitt. Plead., 50, 152, 161; Saund. Plead, and Ev., 278.) . “I entertain a decided opinion,” said Chancellor, then Ch. J. Kent, “that the established principles of pleading, which compose what is called its science, are rational, concise, luminous, and ought, consequently, to be very carefully touched by the hand ot innovation.” (1 Job., 471, payard v. Malcolm.) And the advantage of an orderly, not to say scientific system of administration, is as apparent in the courts of admiralty, and the mischiefs of uncertainty or inexactness are as positive there, as in any other tribunals. Such seems to have been the opinion of Justice Story. (The Boston, 1 Sum., 328.) This difference in opinion with the court would not have been the ground of a public dissent on my part, if I had not deemed the decree erroneous, and if I did not believe that the parent error is to be found in this departure from accurate pleading. The decree treats the liability of the master or owner for an average contribution as an integral part of their special written contract of affreightment; and their failure to pay their share of average is disposed of as a breach of the express obligation. My opinion is, that the obligations are distinct, though intimately associated, and are referable to different principles of law, and in the judicial administration of the United States may be subject to distinct jurisdictions. The principle of the rule of general contribution, as applied to the case of a jettison, exists in all commercial nations;' and the rule itself became a part of the statute law of England, in the reign of the Conqueror, and that of his youngest son. In a later period, the same principle was applied to a great number of analogous cases. 1 he inquiry is, upon what courts was the duty devolved of enforcing and administering this principle of general jurisprudence, and particularly in the cases of average? In Berkley v. Peregrave, (1 East., 220,) which was a special action of assumpsit for average on an unadjusted average account, Lord Kenyon says: “ This action, the grounds and nature of which are fully set out in the special count, is founded in the common principles of justice. A loss is incurred, which the law directs shall he borne by certain persons in their several proportions. When a loss is to be repaired in damages, where else can they be recovered but in the courts of common law? And wherever the law gives a right, generally, to demand payment of another, it raises an implied promise in that person to pay.” In Dobson v. Wilson, (3 Camp., 480,) Lord Ellenborough said: “A 176 SUPREME COURT. Dupont de Nemours Co. v, Vance et al. court of equity may perhaps be a more convenient forum for adjusting the claims of the different parties concerned; but if a shipper of goods, which are sacrificed for the salvation of the rest of the cargo, is entitled to receive a contribution from another shipper whose- goods are saved, I know not how I can say this may not be recovered by an action at law. This is a legal right, and must be accompanied with a legal remedy. The difficulty of showing, by strict evidence, the exact amount of the contribution, is great; but, as there are data upon which it may be calculated with great certainty, I think, is no objection to the action.” (Price v. Noble, 4 Taun., 123.) Holroyd, in the argument of the case in East., saidr “At the common law, where a contribution was required, a writ of contribution issued, precedents of which are to be found. (Fitz. Nat. Brev.) This has fallen into disuse; because, in most instances, as many persons were concerned, a more easy remedy was administered in equity.” And so, from7 the earliest of the chancery reports, we learn that chancery will enforce an average or contribution to be made, when necessary, and that it will enforce an agreement among merchants to pay average. (Comyns’s Big., Chan. 2 J., 2 S.; Hick??. Pallington, Moor., 442; Ca. Pari., 19.) Spence, in his history of equitable jurisdiction, says, “ That the court of chancery, from a period which cannot be traced, but which, as it was also apparently adopted from the Roman law, was probably coeval with the establishment of the court, exercised jurisdiction to compel contribution amongst general shippers of goods, when those belonging to one were thrown overboard for the safety of the ship, or in cases, as they are technically called, of general average.” (1 Spenc. Eq. Ju., 663.) The popular treatises on the chancery system show that the title “Contribution” is one of great reach, comprehending a variety of cases which rest upon a familiar maxim of equity, and that average is only an instance of its application. How stands the historical evidence in regard to the jurisdiction of the admiralty courts, with reference to this subject? What say the “Black Book” and “Godolphin,” or the controversionalists, Prynne, or Jenkins, in support of the ancient claims of these tribunals? What is to be found in the treaty of limits between the courts of common law and admiralty? In the case of the Constancia, (2 W. Rob., 488,) a question arose upon the distribution of the proceeds of a snip and cargo which were on deposit in the registry of the court, in a cause in which its jurisdiction was indisputable. The claimant asserted a preference in the distribution, because a portion of the cargo belonging to him had been sold DECEMBER TERM, 1856. 177 Dupont de Nemours ft Co. v. Vance et al. for the repairs of the ship. The learned judge of that court said: “As far as my own experience extends, no claim of a similar description is to be found in the annals of the court; a circumstance which naturally induces me to consider with some carefulness whether the novelty of the claim be specious or real. In other words, whether, novel in appearance, it does not rest upon some recognised principles by which other claims have been decided. What, then, is the true character of the claim in question ? It is a claim on behalf of the owners of certain property shipped on board of the vessel, and applied to relieve the ship’s necessities, and to enable her to complete her voyage. “In the case of the Gratitudinine, Lord Stowell has held that property so sacrificed is to be considered as the proper subject of general average; and Lord Tenterden, in his book on shipping, lays down the same doctrine. If this be so, and if, upon the authority of my Lord Stowell, thus confirmed by my Lord Tenterden, I am to consider this claim as a subject of general average, two considerations immediately suggest themselves. First, whether I have any jurisdiction at all over questions of general average; and, secondly, whether I could satisfactorily exercise such a jurisdiction under the circumstances of this case? The absence of ahy precedent, where the court has exercised the jurisdiction, is of itself a strong prima facie proof that I have no authority to entertain the question at all; and I am the more strongly inclined to this opinion, by the further consideration that, in all cases of average, it is essential that the tribunal which is to adjust it should have the power to compel all parties interested to come in, and to pay their quota. I possess no such power; and if I could not bring all parties interested before the court, I could not adjust a general average, which is a proportionate contribution by all.” These citations from the opinions of the various tribunals which administer different departments of the judicial power of Great Britain, show that the doctrine upon which average contributions is made is not peculiar to the maritime code; and, also, that the maritime courts of the first commercial power that has existed have never administered it, and their judges suppose their modes of proceeding unsuitable to it. In the case of the Constantia, the res was in the custody of the court of admiralty, ^yet that court denied the existence of a maritime lien, or that any liability of the freighters against the ship could be enforced there. And this is equally apparent from the doctrines of the cha.ucery and law. In Hallett v. Bonsfield, (18 Vesey, Jr., 187,) which was the case of a shipper whose property had been overthrown to lighten a ship in a storm, and who moved vol. xix. 12 178 SUPREME COURT. Dupont de Nemours § Co. v. Vance et al. to restrain the master and ship-owner from delivering any part of the cargo and receiving the freight, or parting with any share of the ship, Lord Eldon said, “ that in such a case there is a lien upon the goods of each freighter, for contribution and average, in some sense; that is, the master is not bound to part with any part of the cargo until he has security from each person for his proportion of the loss; but there is no authority, that on the ground that he has a lien to the extent of entitling .him to call on every person to give security for the amount of their average when it shall be adjusted, every owner of a part of the cargo can compel the captain to do so; and it strikes me, upon the short time I have had to consider it, that is a length the plaintiff cannot reach. The defendant it is true is a trustee for others, but the nature of the trust is regulated by the practice; and there is no instance of an action, or a suit in equity, to effectuate the lien, otherwise than through the right of the master to take security; that practice ascertaining the true nature and extent of the trust.” This lucid statement of the English law explains the meaning of the older class of writers on commercial law, when they speak of the master’s lien, and his duty to settle an average account. Valin observes, that the article of the ordinance of 1681, which confers a right of detention upon the master, does not impose an imperative obligation upon him, and that he may deliver to each freighter his goods, without fear of consequences, unless specially required to withhold them. And -other writers concur in the opinion, that the freighters, under that ordinance, had no action against one another. (Boucher Droit Mar., 450, 451.) Lord Tenterden cites this case from Vesey, jr., without dissent, in his work on shipping, (Abb. on Ship., 508;) and in Simonds v. White, (2 B. and C., 805,) he describes the power of the master over tne goods “as a power of detention,” given in order that the expense, inconvenience, and delay of actions .and suits, may be avoided. This court, in Cutler v. Rae,. (7 Howard, 729,) declared that the party entitled to contribution “has no Absolute and unconditional lien upon the goods liable to contribute. The captain has a right to retain them until the general average with which they are charged has been paid or secured; and, that this right of retainer is a “ qualified lien, “ dependent on the possession of the goods by the master or •ship-owners,” and “ ceases when they are delivered to the owner or consignee; ” “ and does not follow them into their hands, nor adhere to the proceeds; ” and a corresponding opinion of Lord Tenterden is to be found in Scaife v. Tobin, (3 Barn, and Ad., ■523,) in which he says, “ a consignee who is the absolute own DECEMBER TERM, 1856. 179 Dupont de Nemours $ Co. v. Vance et al. er of the goods is liable to pay general average, because the law throws upon him that liability; but a mere consignee, who is not the owner, is not liable.” And this demonstrates that the lien for average is not a maritime lien. A maritime lien does not include or require possession. The claim or privilege travels with the thing, into whosesoever possession it may come. It is inchoate from the moment the claim or privilege attaches, and when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached. (Harmer v. Bell, 2 L. and Eq., 63.) These cases show, that neither in the adjudications of the courts of Great Britain or the United States, nor in the usages of their merchants, is there any sanction for the doctrines of this decree. No adjudication during sixty years of our history is to be found, where the power to adjust or to collect an average account is affirmed, or has been exerted by the district courts sitting in admiralty, upon direct application to them for the purpose. The importance of the subject will justify me in an examination of the continental authorities, which are supposed to establish the existence of a maritime lien for contribution. The ancient codes do nothing more than recognise the existence of a rule of contribution in regard to losses arising from a jettison, or cases of a similar character, and the master’s power of detention of the cargo saved, for the security or payment of the contributory shares, but they do not ascribe any greater operation to the rule, either in affecting property or in designating the jurisdictions to which the enforcement of the rule should be committed. The leading authority cited for the doctrine, that average affords a maritime lien on the property saved, is found in a line of Emerigon, who says, “the action in contribution is real in its nature.” But that author discriminates the feature in a real action to which the action in contribution has any resemblance. The feature is, “ that the action vanishes if the effects saved by means of the jettison perish before arriving at their destination.” The real action is for a thing, or to assert some right in it, and is terminated by its surrender, or destruction without the fault of the possessor. So long as the ship and cargo are exposed to peril in the same voyage in which the jettison is made, the action in contribution is inchoate, and dependent on the ultimate safety of the thing; and thus far it resembles a real action. But when the safety of the ship and cargo is confirmed, the liability of the contributories becomes personal, and the sums due are recoverable without further reference to 180 SUPREME COURT. Dupont de Nemours $ Co. v. Vance et al. them; in France, by action in contribution; and in England, by a bill in equity for contribution, or action of assumpsit. It is a great mistake to suppose that the action in contribution was a hypothecary action, as I shall hereafter show. In the time of Emerigon it was thrown upon the master, as the legal attorney of all persons interested in the ship and cargo. It was his duty to collect the contributory shares, and to pay them among the parties concerned; but he was not liable for the shares of insolvents, nor obliged to detain the goods, and that was an unusual, if not an unprecedented remedy. The ordinance of 1681 simply permitted this remedy to be used. This ordinance was defective, in not defining the rights Of the master in the goods liable to contribution. The ordinance did not take the precaution to establish the existence and legitimacy of privileged claims, is the testimony of those who framed the Code of Commerce of Napoleon. (3 Locre Com., 22.) The Code of Commerce was framed to repair what was considered a defect. In reference to average, it provides, “that in all the cases before mentioned, the master and mariners have a privilege on the goods or their proceeds for the amount of the contribution.” This clause was not in the “projet” of the commission, nor in their revision; but after suocessive changes, the article appears in this form for the first time in the final draught of the code. The jus in re is conferred by this clause on the master, and he may proceed to enforce his rights by judicial seizure and sale, or opposition, or he may sue each contributory for his share in contribution, and is responsible in an action to each of them. But the evils of dormant liens are removed by limitations upon the extent and duration of the claim. The code bars actions against the freighter who receives his goods and pays his freight without a legal notice of the claim for average; and each claim must be notified in twenty-four hours to the opposite party, and be pursued by judicial demand in one month. (Thier Droit Coe., 41,124, 277; 4 Locre Com.;' 3 Pard. Droit Com,, sec. 750; 18 Dall., 544.) Other articles define the liability of the owner, and the contributory share of the ship and cargo, the responsibility of the master, and create a privilege upon the ship and freight to answer the agreements of the charter-party, and whatever defaults of the master and mariners. (Thiernt Con. Droit, 28, sec. 2; 29, sec. 11; Code de Com., 190, secs. 11, 216, 222, 280.) The commentaries of Pardessus, Locre, Boulay, Paty, an, other authors, are made upon these enactments statute law. They affirm that these articles establish, as t DECEMBER TERM, 1856. 181 Dupont do Nemoure $ Co. v. Vance et al. law of France, that the frieghter of a ship is obliged, by a contract or quasi contract to the master^ to contribute his share of an average contribution; and that the master engages to indemnify the freighter whose property has suffered or been sacrificed for the common benefit; and that reciprocal rights of action are given to either party. I have no occasion to question the accuracy of their conclusions, nor to deny that the code itself embodies the usages, experience, and regulations, of the French nation in the management of their commerce, and is adapted to the wants and habits of their merchants. And no one can doubt that the authority of Louis XI7 and Napoleon was adequate to the introduction of the ordinance and the code. But the question arises here—and it is one of grave import to those who desire to preserve the Constitution of the Union inviolate, and the limits it prescribes to the judicial power of the Federal Government, and the lines of division among the Federal courts undisturbed—the question arises, by what authority is it that the commercial system of France, the product of the legislative authority of her monarchs, has become the basis for judicial decision in the courts of the United States, and her legal administration of purely municipal regulations is -taken as a guide to determine the jurisdictional limits of those courts of justice? That Congress may prescribe rules in reference to the settlement of average contributions, arising in the foreign or federal commerce of the country, may be admitted, and also may tassimilate the American and French systems of commercial regulation. But I am not prepared to admit that this can be done by judicial authority. The commercial systems of Great Britain and the United States recognise no such contract between the masters and freighters as the French code establishes; they invest the master with no such privilege upon the property of the shippers; they confer no such powers to maintain suits, and subject him to no such liabilities. The policy and spirit of the British and American commercial systems tend to restrain the agency and control of subordinates to precise limits in settlements'or contests with respect to property and obligations; wherever it can . done, they bring the owners of the property, and the principals in the obligations, to confront one another. In my opinion, this decree introduces a new principle into the Amer- > lean commercial system, and that this interpolation adds td tne jurisdiction of the judiciary department of this Govern-]?en/i done by judicial authority* In my opinion, e npns^fution does not give such a power to this court. I therefore dissent from the decree* 182 SUPREME COURT. Steamer Virginia V. West et al. Having carefully examined the foregoing opinion of Mr. Justice CAMPBELL, after it was in print, I am satisfied with its correctness, and concur therein. J. CATRON. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged,' and decreed, by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, without costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to ascertain the amount of the lien of the libellants on the Ann Elizabeth, for the share to be contributed by the vessel towards the loss sustained by the libellants, and to enter a decree accordingly. The Claimants and Owners of the Steamer Virginia, Appellants, v. Michael W. West, William T. Bell, Albert R. Heath, and James J. Edwards, Partners, under the firm of Heath & Edwards ; Thomas C. Bunting and------------- Legato, Partners, under the firm of Bunting & Legato, and John M. Henderson. Where an appeal is taken to this court, the transcript of the record must be filed and the case docketed at the term next succeeding the appeal. Although the case must be dimissed if the transcript is not filed in time, yet the appellant can prosecute another appeal at any time within five years from the date of the decree, provided the transcript is filed here and the case docketed at the term next succeeding the date of such second appeal. This was an appeal from the Circuit Court of the United States for the district of Maryland. Jfr. Johnson moved to dismiss the appeal, upon the ground that the record was not filed in time. Mr. Chief Justice TANEY delivered the opinion of the court. This is an appeal from the Circuit Court for the district of Maryland. The decree from which the appeal has been taken was passed by the Circuit Court on the 17th day of November, 1855, and the appeal was prayed on the same day in open court., was not prosecuted to the next succeeding term of this court, DECEMBER TERM, 1856. 183 Brown v. Dwihesno. and no transcript of the record was filed here during that term. But a transcript has been filed at the present term of this court, and the case docketed. And a motion is made to dismiss it, upon the ground that the appeal is not legally before this court, according to the act of Congress regulating appeals. The construction of this act of Congress, and the practice of this court under it, has been settled by the cases of Villalobos v. The United States, (6 Howard, 81,) and The United States v. Curry, (6 Howard, 106.) The transcript must be filed in this court and the case docketed at the term next succeeding the appeal, in order to give this court jurisdiction. This ease must therefore be dismissed. But the dismissal does not bar the appellant from taking and prosecuting another appeal at any time within five years from the date of the decree, provided the transcript is filed here and the case docketed at the term next succeeding the date of such second appeal. John Brown, Plaintiff in Error, v.------------Duchesne. The rights of property and exclusive use granted to a patentee do not extend to a foreign vessel lawfully entering one of our ports; and the use of such improvement in the construction, fitting out, or equipment, of such vessel, while she is coming into or going out of a port of the United States, is not an infringement of the rights of an American patentee, provided it was placed upon her in a foreign port, and authorized by the laws of the country to which she belongs. This case came up, by writ of error, from the Circuit Court of the United States for the district of Massachusetts. The facts in the case and state of the pleadings in the Circuit Court are set forth so particularly, in the opinion of the court, that they need not be repeated. It was submitted on a printed argument by Mr. Dana for the plaintiff in error, and argued by Mr. Austin for the defendant. As the points raised in the case are entirely new, it is thought expedient to present them to the reader as they were brought before the court by the respective counsel. Mr. Dana, for the plaintiff in error, after stating the circumstances of the case, said that the question for the court to decide was: Whether, under these circumstances, there is an exemption 184 SUPREME COURT. Brown v. Duchesne. front the operation of our patent laws, by reason of the nationality of the vessel. Since this cause was argued in the Circuit Court, my attention has been called to the case of Caldwell v. Van Vlissengen, 9 Hare, 415, (9 Eng. L. and Eq. Rep., p. 51.) In that case, the machine patented was a screw propeller. This was a substantial part of the vessel, and almost necessary to her use. The vessel was built and solely owned in Holland, where the invention was in free and common use. The affidavits set forth facts sufficient to establish an exemption, if national character can give one. The court fully considers the question, and decides against the exemption. (On pp. 58, 59, the court puts the right to an injunction upon the ground that actions at law are maintainable in these cases.) The court considers that the question of the exemption of foreign vessels, either entirely, or in cases of reciprocity, is one of national policy, and to be dealt with by the Legislature, rather than by the courts. After .reading this decision, I wrote- to Sir William Page Wood, the counsel for the respondents, then Solicitor General, and now Vice Chancellor, and received from him the following reply: 31 Great George St., Westminster, November 6, 1855. My Dear Sir : Your letter reached me yesterday. The case you refer me (Caldwell v. Van Vlissengen) was not appealed. I thought the decision was right, though it was against me. At the same time, I saw that there were inconveniences in the application of the law; and in the session of 1852, when a bill was passing through the House of Commons, with reference to the amendment of the Patent Laws, I proposed the insertion of the following clause. [Here follows section 26, of the act of 15 and 16 Victoria, ch. 83.] The opinion of Sir William Page Wood is entitled to great , weight before every judicial tribunal, as is well known to your honors. After this decision, the act 15 and 16 Victoria, ch. 83, was passed; section 26 of which is as follows: (4 Chitty'’s Statutes, 217.) “No letters patent for any invention (granted after the passing of this act) shall extend to prevent the use of such invention in any foreign ship or vessel, or for the navigation of any foreign ship or vessel, which may be in any port of her Majesty’s dominions, or in any of the waters within the jurisdiction of any of her Majesty’s courts, where such invention is not used for the manufacture of any goods or commodities to be vended within or exported from her Majesty s DECEMBER TERM, 1856. 185 Brown v. Duchesne. dominions. Provided, always, that this enactment shall not extend to the ships or vessels of any foreign State, of which the laws authorize subjects of such foreign State, having patents or like privileges for the exclusive use or exercise of inventions within its territories, to prevent or interfere with the use of such inventions in British ships or vessels, while in the ports of such foreign State, or in the waters within the jurisdiction of its courts, where such inventions are not so used for the manufacture of goods or commodities, to be vended within or exported from the territories of such foreign State.” Such is the state of the law in Great Britain, the greatOst commercial nation of Europe. There is no reason to believe that the law of any other nation of Europe varies from that of England. Indeed, it is probable that other nations will do likewise, and keep in their own hands the power of granting or withholding such an exemption, on considerations of policy, by legislation or treaty. It is therefore respectfully suggested that the court should leave this question to the law-making and treaty-making departments of our Government, in the mean time placing the law in this country upon the same basis upon which it rests in England. Is there any controlling reason why the court should not do this? It is conceded that the statute, in its terms, suggests no exemption. Ko interpretation of the statute would suggest an exemption. If one is established, it must be by some imposed construction, paramount over the plain language of the acts. This is found solely in certain supposed principles of international law. Ko decision in point, in this country, has been cited, and the English cases referred to are inapplicable, as shown in Caldwell v. Van Vlissengen, cited. The defendant’s vessel, being private property, and here voluntarily, for purposes of trade, has no exemption from general national jurisdiction. (Phillimore’s Int. Law, 367, 373; The Exchange, 7 Cranch, 144; Story’s Conflict of Laws, sec. 383.) International law respects absolute rights, the violation of which is cause of war, and comity, or rights of imperfect obligation, the contravention of which is not presumed, but which each nation is competent to contravene if it chooses. (This distinction is well stated in Mr. Webster’s letter to Lord Ashburton, in the appendix to Wheaton’s Law of Kations.) It will not be claimed that the prohibition of the use of such an article as this, in a private vessel, under these circumstances, 186 SUPREME COURT. Brown v. Duchesne. is a violation of any absolute right secured by the law of nations. The Government has the right to prohibit commerce altogether, or with particular nations, as by embargo or nonintercourse laws. (1 Kent’s Com., sec. 33 n; Vattel, Book 2, Ch. 7, sec. 94; Ch. 8, sec. 100; Ch. 2, secs. 25, 33—Book 1, Ch. 8, sec. 90.) As a nation may prohibit trade, so it may lay conditions and restrictions. Authorities cited supra. (Vattel, Book 2, Ch. 8, sec. 100.) The question is really under the comitas gentium. Between countries trading freely, is there a presumption from the law of comity that no nation will prohibit or restrict the use of such an invention, under such circumstances, so well settled as to authorize a court to establish the exception against the language of the statute ? This can hardly be contended, since the case of Caldwell v. Van Vlissengen, and the act 15 and 16 Victoria. This is not a question of property, or of the domicil or situs of property. The defendant may have his vessel full of these articles, if he chooses. We admit the property in the article to be in him, and that it is part of the national wealth of Erance, and has its situs in France, for purposes of taxation, and for all national purposes. (Hays v. Pacific Co., 17 How., 596.) The question is upon a restriction of its use within our dominions. As the use of the machine is not alleged to be necessary, and the presence of the vessel here is voluntary, if the comity of nations does not allow the prohibition in this case, it would forbid it in all cases of patents; and vessels nominally owned in the British Provinces, and in the West India Islands, may use all our nautical patents. To what burdens is the foreigner and his personal property subject? Not to taxes for the support of the Government. (In re Bruce, 2 Cr. and J., 437; Vattel, Book 2, Ch. 8, sec. 106.) Nor to duties that relate to the quality of a citizen, as militia or jury duties. But they are subject to all burdens, taxes, and duties, relating to the police and economical regulations of a State. (Vattel, B. 2, Ch. 8, sec. 106.) They are subject to imposts and duties levied for the purpose of encouraging the manufactures or other industry of a* country, and are liable to prohibitions and restrictions made for the same purpose. Such are most navigation laws, and a large part of the revenue laws of a country. (Vattel, B. 2, Ch. 8, sec. 106; 1 Kent’s Com., 35.) Their exemption seems to be based upon the principle that DECEMBER TERM, 1856. 187 Brown V. Duchesne. they shall not be required to do anything inconsistent with their home allegiance, or anything which supposes an allegiance or fealty to the State in which they merely sojourn. The patent and copyright laws of a country stand upon the same ground with navigation laws, and laws prohibiting altogether or restricting certain kinds of trade, for economical purposes, or to add to the military resources and strength, or to increase the effective power and industry of a country, or to develop its genius. As to these, each nation is the proper judge of its own policy. (Vattel, B. 2, Ch. 2, secs. 25, 33.) Indeed, Vattel (B. 1, Ch. 20, sec. 255) seems to define the police regulations of a country so as to include patent laws. The object of the patent laws is to develop the genius and industry of the country, as well for war as for peace. And whether the law in this case be looked upon as a prohibition of the use, or as a duty, burden, or tax, on the use, it is equally within the recognised jurisdiction of the sovereign, under the comity of nations. Ender the British copyright laws, a foreigner cannot introduce into England, even for his private use, a book printed in his own country, if it is subject to copyright in England; and the introduction entails a forfeiture, instead of a tax to be paid to the author. (Act 5 and 6 Victoria, Ch. 45.) . In this state of the international law, in the absence of all direct decisions in support of the defendant’s position, and since the passage of 15 and 16 Victoria, and the decision in Caldwell y. Van Vlissengen, it is respectfully suggested that the question of exemption of foreigners (in cases not of necessity or charity) should be treated as a political rather than a legal question, and the British precedent be followed by the court, until Congress or the treaty-making power shall act upon it. Mr. Austin, for defendant in error, made the following points: I. Foreign vessels entering a port of the United States, by the express or implied permission of the Government, do so under an implied immunity and reservation of the right belonging to them by the laws of the country to which they be-an implied understanding that the persons on board shall not violate the peace or domestic laws of the* country. (Vatters Law of Nations, B. 2, Ch. 8, sec. 101.) , The Alcyon, coming from the island of Miquelon, may be deemed to have entered a port of the United States by express P^hission., (5 United States Statutes at Large, 748, Ch. 66, wnich specially mentions this island.) 188 SUPREME COURT. Brown v. Duchesne The plaintiff says that the terms of the patent law are "broad enough to render .the use of the aforesaid contrivance or gaffsaddle on board of the Alcyon, while in the harbor of Boston, a violation of his right. The question is, whether the patent law can be properly so construed as to include a use of said gaff-saddle, notwithstanding the circumstances under which the said gaff-saddle was incorporated into the structure of the Alcyon, and notwithstanding the express or implied permission of the United States, by force of which she entered a port of the United States. II. What shall or does constitute a vessel must be determined exclusively by the law of the country to which the vessel belongs, i. e., by the law of the owner’s domicil. This follows necessarily from general maxims of international jurisprudence. (Story on Con. of Laws, secs. 18, 20.) In order to ascertain what is or is not real property, we must resort to the lex loci rei, (Id., sec. 882, 447;) so as to what is or what is not a corporation. (Bank of Augusta v. Earle, 13 Pet., 518.) The Alcyon, although in a port of the United States, was still within the jurisdiction of France. Children born on board of her while in Boston harbor would have been French subjects. (Vattel L. of N., B. 1, Ch. 19, sec. 216.) Tne extent to which this principle is applied is shown in the case of In re Bruce, (2 Cr. and J., 437,) and Thompson v. The Advocate General, (12 Clark and F., 1.) See also United States v. Wiltberger, (5 "Wh., 76.) The gaff-saddle was as much an integral part of the Alcyon as her rudder, or her keel, or her gaff. Whether a more or less necessary part, does not alter the fact that it was rightfully a part of the vessel by French law. Therefore, if the United States patent law operated to prevent the defendant from using the gaff-saddle while in the harbor of Boston, notwithstanding it was a part of his vessel, without plaintiff’s permission, it operated just so. far to impose a restriction on the implied permission accorded by the United States to all French vessels to enter the ports .of the United States, and upon the express permission accorded to all French vessels from Miquelon. The statutes of the United States relating to patents were not intended to affect, and do not affect, foreign vessels coming into the ports of the United States. 1st. The statutes of a country relating to patents are not such laws as a foreigner, visiting this country temporarily, and not to become a resident, is bound to obey, so far as those laws relate merely to the use of articles purchased abroad, and DECEMBER TERM, 1856. 189 Brown v. Duchesne. brought into the country solely for the personal use of the party in possession while a transient visiter. (Vattel L. of N., B. 2, Oh. 8, secs., 101, 106, 109; Boullenois Traite des Statuts, pp. 2, 3, 4; Universities of Oxford and Cambridge v. Richardson, 6 Vesey, Jr., 689, which entirely supports this position.) 2d. The United States, in granting letters patent, or any other exclusive privilege to a citizen, necessarily always reserve by implication their own rights of sovereignty, which are not to be affected by any individual or private privilege. Examples of the application of this principle are as follows: 1. In regard to the right of eminent domain. This exists inherently in every Government. (Vattel’s L. of N., B. 1, Ch. 20, sec. 244; Bonaparte v. The Camden and Amboy Railroad, 1 Bald., 220.) It is recognised in the Constitution of the United States. (Arndt. V.) Therefore, if the Government by a land patent convey today a portion of its public lands to an individual, it could tomorrow, by virtue of the implied reservation of its right of eminent domain, resume the land from its own grantee, and against his consent, by paying to him an indemnity. Independently of the principle that the right of eminent domain, being an attribute of sovereignty, cdwMnot be conveyed away, the conclusion above stated follows from the rule that in public grants nothing passes by implication. (United States v. Arredondo, 6 Pet., 738; Jackson v. Lamphire, 3 Pet., 289.) 2. The constitutional power of Congress over commerce. This power extends to navigation, (2 Story’s Com. on Con., sec. 1,060,) and to every species of commercial intercourse. (Id., 1,061.) In the exercise of this power, Congress in 1845, after the date of the plaintiff’s patent, passed the law relating to French vessels coming from Miquelon, (ubi supra,) which law makes no exception as to the kind of vessel, or the mode of its rig, dr the peculiarities of its structure. Either, therefore, the power of Congress to pass an act thus broad in its terms was limited by the grant to the plaintiff of an exclusive right to use the contrivance in question, or the exclusive right was limited in its extent by the implied resSrva-rff1 o^.Power f° pass such an a*ct. As the grant to the plain-ap-d the act of 1845, are in direct opposition, the grant ^How ggns^rue<^ against grantee. (Mills v. St. Clair County, ^eXen(^arJ does not contend that he would have a right to^brmg into a port of the United States a cargo or any number of these contrivances for sale; nor even that he had aright 190 SUPREME COURT. Brown V. Duchesne. to detach, and sell that on board of the Alcyon. In this argu-ment the gaff-saddle is deemed a part of the schooner, in the same way as fixtures are parts of the reality. 3. The power of Congress to alienate a portion of its territory. This power exists, in every Government, (Vattel’s L. of N., B. I., Ch. 21, sec. 263.) It was exercised in the Treaty of Washington, 1842, (8 U. S. Stat, at Large, 572.) Every patent right then ’existing extended over the whole country as then bounded. The alienation of a portion of the territory diminished the value, by diminishing the extent of every existing patent right; but they were all granted, subject to the implied reservation of power on the part of the Government thus to diminish their value. The right, therefore, of the plaintiff, to an exclusive use of his patented contrivance within the jurisdiction of the United States, was limited by the paramount right of the sovereignty of the United States to admit all vessels into the ports of the United States, which right they have exercised in regard to French vessels, by implication, by treaty, and by statute. The same reasoning which would separate the gaff-saddle from the schooner might be allowed to separate her into as many parts as there should happen to be articles on board of her incorporated into her structure, the like of which were patented in this country. > 3. The private right of every patentee is subject to the public fight of the Government, to admit into the ports of the United States any foreign vessel, free from any private or public charges, tolls, or burdens, other than those imposed by treaty or by the laws of nations, (The Attorney General v. Burridge, 10 Price< 350; Same v. JParmeter, Id., 378; The same v. The Attorney General, Id., 412.) The cases cited are exactly analogous in principle to the case at bar. In the citations, the jus privatum was a grant by Charles I of his property in land between high and low water .mark; and the jus publicum with which it interfered was the fight of the public freely to pass and repass upon the salt water between high and low water mark. In the present case, the jus privatum is the exclusive right granted to the plaintiff to use within the jurisdiction of the United States a certain machine, and the jus publicum with which it interferes is the right the public has to the free admission into the ports of the United States of all foreign vessels, being such according to the law of the country where they belong. DECEMBER TERM, 1856. 191 Brown v. Duchesne. The grant by Charles I of land between high and low water mark was held void, so far as it prevented this free passage. By parity of reasoning, the letters patent of the plaintiff must be held void, or rather as never having extended to foreign vessels visiting the ports of the United States, as the Alcyon visited Boston. The principle here contended for, as it applies to ports and harbors, is clearly stated by Lord Hale, in his treatise De Jure Maris, cap. 6, p. 35, and in the treatise De Portibus Maris, chapter on the jus publicum., pp. 84, 89: “When a port is fixed and settled,” “though the soil and franchise and dominion thereof prima facie be in the King, or by derivation from him in a subject, yet that jus privatum is clothed and superinduced with a jus publicum.” So in the case at bar, the jus privatum of the patentee is subject to the Jits publicum by which foreign vessels, however constructed, may enter our ports. This Government, never having undertaken to decide, nor ever having granted to an individual the right to decide for the Government, that certain vessels, or vessels constructed partly or wholly in a certain way, shall not enter our ports without paying a toll, or charge, or duty, not imposed by treaty or special laws relating thereto. 4. The statutes relating to patents cannot properly be so construed as to include machines or contrivances forming a part of the original structure of foreign vessels entering the ports of the United States, as the Alcyon entered Boston harbor. (1.) Because such construction, for the reasons above stated, would introduce public mischiefs and manifest incongruities. (Sawin v. Guild, 1 Gall., 485; Talbot v. Seaman, 1 Cr., 1; Murray v. The Charming Betsey, 2 Id., 64.) . (2.) These statutes were passed alio intuitu. (See the reasoning of Judge Curtis, in the opinion delivered by him in this case, printed from the original MS. in 4 Am. Law Register, 152. Also, Lessee of Brewer v. Blougher, 14 Pet., 178: “The laws will restrain the operation of a statute within narrower limits than its words import, if the literal meaning of its language would extend to cases which the Legislature never designed to embrace in it”—198.) It cannot be supposed that Congress intended the statutes on patents to confer a right on a patentee to interfere in any way with the exercise of a license ?°merred by Government on a foreign vessel. (Same doctrine m. Mercer v. Mechanics’ Bank of Alexandria, 1 Ret., 64.) A patent of the United States confer upon the grantee the exclusive right to the subject-matter of the patent, o be exercised within their jurisdiction. A foreign ship coming' 192 SUPREME COURT. Brown v. Duchesne. within one of the ports of the United States, with their express or implied permission, is without the jurisdiction within which this exclusive right is to be exercised. 1. Foreigners within the territorial jurisdiction of a country may yet be within its municipal jurisdiction for no purpose whatever. Such is the status of public ministers—(Wheaton’s Elements of the L. of K., Part III, c. 1, s. 14; Id., Part H, c. 2, s. 9)—and of foreign sovereigns entering the territory of another—(id. id.- id.)—and of foreign armies marching, &c., through the territory—(id. id. id.)—and of a foreign ship of war—(id. id. id.)—and' Schooner Exchange v. McFadden, 7 Cr. 135, 147.) 2. Foreigners within the territorial may be within the municipal jurisdiction of a country for all purposes. This is the status of foreigners who come into the country animo manendi, becoming inhabitants. (Vattel’s L. of K., B. I, c. 19, s. 213.) 3. Foreigners within the territorial may be within the muni* cipal jurisdiction for some purposes, and not for others. This is the case with transient persons (Vattel’s L. of K., B. H, c. 8, ss. 105-’6-’8-’9) and consuls; (Wheaton’s Elements, P. HI, c. 1, s. 23.) The same principle applies to a part of the country in temporary possession of an enemy. (U. S. v. Hayward, 2 Gall., 485.) To goods imported, and not entered, although within the territorial jurisdiction of the State, they are not subject to its municipal jurisdiction. (Harris v. Dennie, 3 Pet., 292.) This principle applies to a foreign commercial vessel visiting a port of the United States. It is within the jurisdiction of the United States, so far that persons on board are bound to do no act against the public peace, or contra bonos .mores, or against the revenue laws, &c., &c. But “for all the personal relations and responsibilities existing in a ship at the time she entered a port, and established or permitted by the laws of her own country, her authorities are answerable only at home; and to interfere with them in discharge of the duties imposed upon them, or the exercise of the powers vested m them by those laws, on the ground of their being inconsistent with the municipal legislation of the country where the. ship happens to be lying, is to assert for that legislation a superiority not acknowledged by the law, and inconsistent with the independence of nations.” (Mr. Legare’s Opinion, 4 Op. of Att. Gen., 98, 102; Same point, 6 Webster’s Works, 303.) V. The case of Caldwell v. Van Vlissengen, (9 Hare, 415, reprinted in 9 Eng. Law and Equity R., 51,) will be cited by plaintiff in error, as deciding the point before the court. On this case, the defendants say: DECEMBER TERM, 1856. 193 Brown v. Duchesne. 1. It will be regarded by this court only so far as the reason- • ing commends itself to the court as sound. 2. The case was not placed upon the grounds assumed in the case at bar. The principles here contended for were neither considered nor even presented to the court. 3. Statute 15 and 16 Victoria, c. 83, s. 26, passed July 1, 1852, provides that letters patent thereafter granted shall not prevent the use of inventions in foreign ships resorting to British ports when not used for the manufacture of goods to be vended in or exported from England, excepting from the act, ships of foreign States in the ports of which British ships are prevented from using foreign inventions when not employed for the manufacture of goods to be vended in or exported from 'such foreign States. This statute was passed in evident recognition of the existence and propriety of the principles of international law contended for by the defendant in error. Mr. Chief Justice TANEY delivered the opinion of the court. This case comes before the court upon a writ of error to the Circuit Court of the United States for the district of Massachusetts. The plaintiff in error, who was also plaintiff in the court below, brought this action against the defendant for the infringement of a patent which the plaintiff had obtained for a new and useful improvement in constructing the gaff of sailing vessels. The declaration is in the usual form, and alleges that the defendant used this improvement at Boston without his consent. The defendant pleaded that the improvement in question was used by him only in the gaffs of a French schooner, called the Alcyon, of which schooner he was master; that he (the defendant) was a subject of the Empire of France; that the vessel was built in France, and owned and manned by French subjects; and, at the time of the alleged infringement, was upon a lawful voyage, under the flag of France,, from St. Peters, in the island of Miquelon, one of the colonies of France, to Boston, and thence back to St. Peters, which voyage was not ended at the date of the alleged infringement; and that the gaffs he used were placed on the schooner at or near the time she was launched by the builder in order to fit her for sea. • l *s a\s? a sec°nd plea containing the same allegations, J1 additional averment that the improvement in question had been in common use in French merchant Vessels for more ' than twenty years before the Alcyon was built, and was the vol. xix. 13 194 SUPREME COURT. Brown v. Duchesne. common and well-known property of every French subject long before the plaintiff obtained his patent. The plaintiff demurred generally to each of these pleas, and the defendant joined in demurrer; and the judgment of the Circuit Court being in favor of the defendant, the plaintiff thereupon brought this writ of error. The plaintiff, by his demurrer, admits that the Alcyon was a foreign vessel, lawfully in a port of the United States for the purposes of commerce, and that the improvement in question was placed on her in a foreign port to fit her for sea, and was authorized by the laws of the country to which she belonged. The question, therefore, presented by the first plea is simply this: whether any improvement in the construction or equipment of a foreign vessel, for which a patent has been obtained in the United States, can be used by such vessel within the jurisdiction of the United States, while she is temporarily tticre for the purposes of commerce, without the consent of the patentee ? This question depends on the construction of the patent laws. For undoubtedly every person who is found within the limits of a Government, whether for temporary purposes, or as a resident, is bound by its laws. The doctrine upon this subject is correctly stated by Mr. Justice Story, in his “ Commentaries on the Conflict of Laws,” (chap. 14, sec. 541,) and the writers on public law to whom he refers. A difficulty may sometimes arise, in determining whether a particular law applies to the citizen of a foreign country, and intended to subject him to its provisions. But if the law applies to him, and embraces his case, it is unquestionably binding upon him when he is within the jurisdiction of the United States. The general words used in the clause of the patent laws granting the exclusive right to the patentee to use the improvement, taken by themselves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode of expounding a statute has never been adopted by any enlightened tribunal—because it is evident that in many cases it would defeat the .object which the Legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merelv to a particular clause in which general words may be used, but will take in connection with it the whole statute (or statutes on the same subject) and the objects and policy of the law, as indicated by its various provisions, and give, to it such a construction as will carry into execution the will of the Legislature, as thus ascertained, according to its true intent an meaning. DECEMBER TERM, 1856. 195 Brown v. Duchesne. Neither will the court, in expounding a statute, give to it a construction which would in any degree disarm the Government of a power which has been confided to it to be used for the general good—or which would enable individuals to embarrass it, in the discharge of the high duties it owes to the community—unless plain and express words indicated that such was the intention of the Legislature. The patent laws are authorized by that article in the Constitution which provides that Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. The power thus granted is domestic in its character, and necessarily confined within the limits of the United States. It confers no power on Congress to regulate commerce, or the vehicles of commerce, which belong to a foreign nation, and occasionally visit our ports in their commercial pursuits. That power and the treatymaking power of the General Government are separate and distinct powers from the one of which we are now speaking, and are granted by separate and different clauses, and are in no degree connected with it. And when Congress are legislating to protect authors and inventors, their attention is necessarily attracted to the authority under which they are acting, and it ought not lightly to be presumed that they intended to go beyond it, and exercise another and distinct power, conferred on them for a different purpose. Nor is there anything in the patent laws that should lead to a different conclusion. They are all manifestly intended to carry into execution this particular power. They secure to the inventor a just remuneration from those who derive a profit or advantage, within the United States, from his genius and mental labors. , But the right of property which a patentee has in his invention, and his right to its exclusive use, is derived altogether from these statutory provisions; and this court have always held that an inventor has no right of property in his invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the acts of Congress; and that his rights are to be regulated and measured by these laws, and cannot go beyond them. But these acts of Congress do not, and were not intended to, operate beyond the limits of the United States; and as the patentee s right of property and exclusive use is derived from •+ ei|^’- ey cannot extend beyond the limits to which the law f18 confined. And the “use of it outside of the jurisdiction oi the United States is not an infringement of his rights, and 196 SUPREME COURT. Brown v. Duchesne. he has no claim to any compensation for the profit or advantage the party may derive from it. The chief and almost only advantage which the defendant derived from the use of this improvement was on the high seas, and in other places out of the jurisdiction of the United States. The plea avers that it was placed on her to fit her for sea. If it had been manufactured on her deck while she was lying in the port of Boston, or if the captain had sold it there, he would undoubtedly have trespassed upon the rights of the plaintiff, and would have been justly answerable for the profit and advantage he thereby obtained. For, by coming in competition with the plaintiff, where the plaintiff was entitled to the exclusive use, he thereby diminished the value of his property. Justice, therefore, as well as the act of Congress, would require that he should compensate the patentee for the injury he sustained, and the benefit and advantage which he (the defendant) derived from the invention. But, so far as the mere use is concerned, the vessel could hardly be said to use it while she *was at anchor in the port, or lay at the wharf. It was certainly of no value to her while she was in the harbor; and the only use made of it, which can be supposed to interfere with the rights of the plaintiff, was in navigating the vessel into and out of the harbor, when she arrived or was about to depart, and while she was within the jurisdiction of the United States. Now, it is obvious that the plaintiff sustained no damage, and the defendant derived no material advantage, from the use of an improvement of this kind by a foreign vessel in a single voyage to the United States, or from occasional voyages in the ordinary pursuits of commerce ; or if any damage is sustained on the one side, or any profit or advantage gained on the other, it is so minute that it is incapable of any appreciable value. But it seems to be supposed, that this user of the improvement was, by legal intendment, a trespass upon the rights of the plaintiff; and that although no real damage was sustained by the plaintiff, and no profit or advantage gained by the defendant, the law presumes a damage, and that the action may be maintained on that ground. In other words, that there is a technical damage, in the eye of the law, although none has really been sustained. This view of the subject, however, presupposes that the patent laws embrace improvements on foreign ships, lawfully made in their own country, which have been patented here. But that is the question in controversy. And the court is, of opinion that cases of that kind were not in the contemplation of Congress in enacting the patent laws, and cannot, upon any DECEMBER TERM, 1856. 197 Brown v. Duchesne. sound construction, be regarded as embraced in them. For such a construction would be inconsistent with the principles that lie at the foundation of these laws; and instead of conferring legal rights on the inventor, in order to do equal justice between him and those who profit by his invention, they would confer a power to exact damages where no real damage had been sustained, and would moreover seriously embarrass the commerce of the country with foreign nations. We think these laws ought to be construed in the spirit in which they were made—that is, as founded in justice—and should not be strained by technical constructions to reach cases which Congress evidently could not have contemplated, without departing from the principle upon which they were legislating, and going far beyond the object they intended to accofriplish. The construction claimed by the plaintiff would confer on patentees not only rights of property, but also political power, and enable them to embarrass the treaty-making power in its negotiations with foreign nations, and also to interfere with the legislation of Congress when exercising its constitutional power to regulate commerce. And if a treaty should be negotiated with a foreign nation, by which the vessels of each party were to be freely admitted into the ports of the other, upon equal terms with its own, upon the payment of the ordinary port charges, and the foreign Government faithfully carried it into execution, yet the Government of the United States would find itself unable to fulfil its obligations if the foreign ship had about her, in her construction or equipment, anything for which a patent had been granted. And after paying the port and other charges to which she was subject by the treaty, the master would be met with a further demand, the amount of which was not even regulated by law, but depended upon the will of a private individual. And it will be remembered that the demand, if well founded in the patent laws, could not be controlled or put aside by the treaty. For, by the laws of the United States, the rights of a party under a patent are his private property; and by the Constitution of the United States, private property cannot be taken for public use without just compensation. And in the case I have stated, the Government would be unable to carry into effect its treaty stipulations without the consent of the patentee, unless it resorted to its right of eminent domain, and went through the tedious and expensive process of condemning so much of the right of property of the patentee as a 4? f°reign vessels, and paying him such a-compensation therefor as should be awarded to him by the proper tribunal, ■the same difficulty would exist in executing a law of Congress 198 SUPREME COURT. Brown v. Duchesne. in relation to foreign ships and vessels trading to this country. And it is impossible to suppose that Congress in passing these laws could have intended to confer on the patentee a right of private property, which would in effect enable him to exercise political power, and which the Government would be obliged to regain by purchase, or by the power of its eminent domain, before it could fully and freely exercise the great power of regulating commerce, in which the whole nation has an interest. The patent laws were passed to accomplish a different purpose, and with an eye to a different object; and the right to interfere in foreign intercourse, or with foreign ships visiting our ports, was evidently not in the mind of the Legislature, nor intended to be granted to the patentee. Congress 'may unquestionably, under its power to regulate commerce, prohibit any foreign ship from entering our ports, which, in its construction or equipment, uses any improvement patented in this country, or may prescribe the terms and regulations upon which such vessel shall be allowed to enter. Yet it may perhaps be doubted whether Congress could by law confer on an individual, or individuals, a right which would in any degree impair the constitutional powers of the legislative or executive departments of the Government, or which might put it in their power to embarrass our commerce and intercourse with foreign nations, or endanger our amicable relations. But however that may be, we are satisfied that no sound rule of interpretation would justify the court in giving to the general words used in the patent laws the extended construction claimed by the plaintiff, in a case like this, where public rights and the interests of the whole community are concerned. The case of Caldwell v. Vlissengen, (9 Hare, 416, 9 Eng. L. and Eq. Rep., 51,) and the statute passed by the British Parliament in consequence of that decision, have been referred to and relied on in the argument. The reasoning of the Vice Chancellor is certainly entitled to much respect, and. it is not for this court to question the correctness of the decision, or the construction given to the statute of Henry VHI. But we must interpret our patent laws with reference to our own Constitution and laws and judicial decisions. And the court are of opinion that the rights of property and exclusive use granted to a patentee does not extend to a foreign vessel lawfully entering one of our ports; and that the use of such improvement, in the construction, fitting out, or equipment of such vessel, while she is coming into or going out of a port of the United States, is not an infringement of the rights of an American patentee, provided it was placed upon her in a for DECEMBER TERM, 1856. 199 Mordecai et al. v. Lindsay et al. eign port, and authorized by the laws of the country to which she belongs. In this view of the subject, it is unnecessary to say anything in relation to the second plea of the defendant, since the matters relied on in the first are sufficient to bar the plaintiff of his action, without the aid of the additional averments contained in the second. The judgment of the Circuit Court must therefore be affirmed. Moses C. Mordecai, Isaac E. Hertz, Joseph A. Enslow, and Isaac R. Mordecai, carrying on business under the name, STYLE, AND FIRM, OF MORDECAI & Co., LlBELLANTS AND APPELLANTS, v. W. & N. Lindsay, Owners of the Schooner Mary Eddy, her Tackle, &c. Where the decree of the District Court, in a case of admiralty jurisdiction, was not a final decree, the Circuit Court, to which it was carried by appeal, had no power to act upon the case, nor could it consent to an amendment of the record by an insertion of a final decree by an agreement of the counsel in the case; nor can this court consent to such an amendment. The District Court having ordered a report to be made, the case must be sent back from here to the Circuit Court, and from there to the District Court, in order that a report may be made according to the reference. This was an appeal from the Circuit Court of the United States for the district of South Carolina. It was a libel filed on the 6th of April, 1854, in the District Court of South Carolina, by Mordecai & Co., against the schooner Mary Eddy, and all persons intervening. A very brief narrative will be sufficient to show the condition in which the case was, when it left the District Court, and this is all that is required under the present opinion of this court. In March, 1854, the Mary Eddy was in New Orleans, about to sail for Charleston. One hundred and two hogsheads of sugar were shipped on board of her, which were to be delivered to Mordecai & Co. The libel was for the non-delivery of these articles. The answer admitted the shipment and arrival of the vessel in Charleston, and then averred the delivery of three hogsheads of the sugar, (together with some barrels of syrup,) the freight of which Mordecai & Co. refused to pay. The answer then alleged that the libellants, having refused to pay freight until the sugars were received by them at their store, or until possession had. passed to them, the master unloaded the residue 200 SUPREME COURT. Mordecai et al. y. Lindsay et al. of the sugars, and, when landed on the wharf, gave notice to. Mordecai & Co. that he would deliver the articles to them upon payment of the freight; that Mordecai & Co. having refused to do this, the master retained the custody of the sugars in order to preserve his lien for the freight. A correspondence took place between the parties, which it is not necessary to state for the purposes of this report. The district judge decreed in favor of the libellants, with costs, and then added: “Mr. Gray, the commissioner and clerk of this court, will ascertain the charges to be made against the respective parties to this suit, and state the account between them. For this purpose, he is authorized to use the testimony already reported, and such further evidence as may be brought before him in relation to this point.” Without any further proceedings being had in the case, the claimants appealed to the Circuit Court, and the record was accordingly transmitted. When the cause came up for hearing before the circuit judge, he reversed the decree of the District Court, and dismissed the libel with costs, whereupon the libellants appealed to this court. The case was argued upon its merits by Jfr. Phillips for the appellants, and Mr. Johnson and Mr. Peverdy Johnson, jr., for the claimants, -whose arguments it is not necessary to state in this report, in consequence of the case being decided upon a preliminary point. Mr. Justice WAYNE delivered the opinion of the court. This is an appeal from the Circuit Court of the United States for the district of South Carolina. Upon the hearing of this cause in this court, it was suggested that the court had not jurisdiction of the case, on the ground that the District Court, which had original jurisdiction of it, had not given a final decree in favor of the libellants, before the cause was taken by appeal to the Circuit Court; from the decision of which, reversing the decision of the district judge and dismissing the libel, the appellants appealed to the Supreme Court. No such decree of the District Court is set out in the record; but the court, supposing it might be a clerical omission, gave to the counsel concerned in the cause time to ascertain the fact, in order that it might be made, either by consent of parties or by certiorari, a part of the record, that there might be no delay in the final disposition of the case by this court. The counsel having made the necessary inquiries DECEMBER TERM, 1856. 201 Mordecai et al. v. Lindsay et al. from the clerk of the District and Circuit Courts, and having reported to this court that no final decree had been extended or passed in favor of the libellants by the district judge, and that the case had been taken by appeal to the Circuit Court upon such imperfect record, and decided in that court, without any notice of the omission having been brought to its view either from the record or in the argument of the case, the counsel have applied to this court to permit them to amend the record by consent, by inserting in it what might be agreed upon by them to be a final decree, urging, as the merits of the case between the parties had been fully discussed here, that the court could proceed upon such amendment to decide the case. We have examined the proposal of counsel in connection with the laws of Congress regulating appeals from the District Court to the Circuit Court, and from the latter to this court, and also the decisions of this court upon those laws, and we do not find, upon any interpretation which has been or could in our view be given to them, that it is in our power to grant the application of counsel for the amendment of the record as they propose it should be done. The right of appeal is “ conferred, defined, and regulated,” by the second section of the act of March 2, 1803, (ch. 20, 1 Stat, at Large, 244.) Its language is: “That from all final judgments or decrees in any of the District Courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars, shall be allowed to the Circuit Court next to be holden in the district where such judgment or judgments, decree or decrees, may be rendered; and the Circuit Court or Courts are hereby authorized and required to receive, hear, and determine, such, appeal. And that from all final judgments or decrees rendered in any Circuit Court, or in any District Court acting as a Circuit. Court in cases of equity, of admiralty, and maritime jurisdiction, and of prize or no prize, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of two thousand dollars, shall be allowed to the Supreme Court °r iie States; and that upon such appeal a transcript °| k ^)e!’ kill, answer, depositions, and all other proceedings oi, what kind soever in the cause, shall be transmitted to the sam Supreme Court.” It is, then, only upon final judgments and decrees that appeals can be taken from either of the courts to the other courts. Without such a decree, neither the Circuit nor the Supreme Courts can have jurisdiction to determine a ^■U8$ upon its merits, as was done in this case by the Circuit Court, from which decision it has been brought by appeal to tins court. The Circuit Court had nothing before it to make 202 SUPREME COURT. Cousin v. Blanc's Executor et al. its decision available for the appellants, if its view of the merits of the case had coincided with the opinion of the district judge, or upon which its process could have been issued to carry out the judgment given by it in favor of the respondents. Nor could it have permitted an amendment of the record of appeal by the insertion of what the parties might have agreed to be a final judgment as to amount, without its having first received the judicial sanction of the district judge. And this court is as powerless in this respect as the Circuit Court was, as its jurisdiction depends upon that court having a proper legislative jurisdiction of the case. It cannot overlook the fact upon which its jurisdiction depends, by any action in the case in the Circuit Court upon an irregular appeal. The case in that court was coram non judice, and is so herd. The appellants have the right to the execution of the order given by the districtjudge to the commissioner and clerk of the court, to ascertain the charges to be made against the respective parties to the suit, and to state an account between them; for which purpose he was authorized to use the testimony already reported, and such further testimony as might be brought before him in relation to that point. That the Circuit Court cannot direct to be done, nor can this court do so. All that we can do in the case, as it stands here, is to reverse the decree of the Circuit Court dismissing the appellants’ libel, to send the case back to the Circuit Court, that the appeal in it may be dismissed by it for want of its jurisdiction, leaving the case in its condition before the appeal to that court, that the parties may carry out the case in the District Court to a final decree, upon such a report as the commissioner and clerk may make, according to the order which was given by the judge. The judgment of the Circuit Court is reversed accordingly. Terence Cousin, Plaintiff in Error, v. Fanny Labatut, Widow and Testamentary Executrix, Jules A. Blanc, Co-Executor, and others, Legal Representatives of Evariste Blanc. Tn Louisiana, all the evidence taken in the court below goes up to the Supreme Court, which decides questions of fact as well as of law. In the absence of bills of exceptions, setting forth the points of law decided in the case, this court must look to the opinion of the State court, (made a part of the record by law,) in order to see whether or not any question has been decided there which would give this court appellate jurisdiction, under the twenty-fifth section of the judiciary act. , A claim to land in Louisiana was presented to the commissioner appointed under the act of 1812, (2 Stat, at L., 713,) reported favorably upon by him to Congress, By whom claimed. Original Claimant. Nature of claim, and from what authority derived. F. Cousin Stephen Rdnd Order of survey. DECEMBER TERM,. 1856. 203 Cousin v. Blanc's Executor et al. and confirmed by the act of 1819, (3 Stat, at L., 528.) But it did not appear that this claim had been surveyed, or that it had any definite boundaries. In 1820, the register and receiver gave to the claimant a certificate that he was entitled to a patent, but without saying how it was to be located. In 1822, Congress passed an act (3 Stat, at L., 707) giving to the registers and receivers power to direct the location and manner of surveying the claims to land confirmed by the act of 1819. In 1826, the register and receiver ordered the claim to be surveyed, speaking of it, however, as being derived from an original claimant, different from the person who was mentioned as the original claimant in the certificate of 1820. The act of 1822 was remedial, and this difference was immaterial. When the survey was executed according to that order, it gave a prima facie title, and the United States were bound by it until it was set aside at the General Land Office. The Supreme Court of Louisiana were in error when they decided that it gave no title, and this court has jurisdiction, under the twenty-fifth section of the judiciary act, to review that judgment. But until the survey was made and approved, the United States could sell the land, and a purchase of a part of it must stand good. This case was brought up, from the Supreme Court of the State of Louisiana, by a Writ of error issued under the twentyfifth section of the judiciary act. As this case will probably be much referred to hereafter, as settling some general principles of great importance, it may be well to sthte in this report the precise nature of the certificates of confirmation and order of survey. Under the act of Congress of April 25, 1812, (2 Stat, at L., 713,) Cousin presented a donation claim to the commissioners appointed under that act. On the 2d of January, 1816, the commissioners reported as follows upon this claim, calling it No. 255, and placing it in class B. (See American State Papers, Public Lands, vol. 3, p. 56.) Date of claim. Quantity claimed. Where situated. By whom issued. When surveyed. Sept. 10,1789.. 1,000 St. Tammany... E. Miro By whom surveyed. Inhabited and cultivated from to General remarks. **•' 204 SUPREME COURT. Cousin v. Blanc's Executor et al. It will be observed that the name of the original claimant is here said to have been Stephen Rene. No survey or location of the land was made under this certificate. In 1819, Congress passed an act (3 Stat, at L., 528) confirming this claim amongst many others, and on the 8th of June, 1820, the register and receiver gave to Cousin the following certificate: [Certificate of Confirmation.] Commissioner’s Report, Letter B, Certificate No. 178. Land Office, St. Helena. In pursuance of the act of Congress passed the 3d of March, 1819, entitled “An act for adjusting the,claims to land, and. establishing land offices for the district east of the island of New Orleans,” we certify that claim No. 255, in the report of the commissioner marked B, claimed by Francis Cousin, original claimant/ Stephen Rene, is confirmed as a donation, and entitled to a patent for one thousand arpens, situated in St. Tammany, and claimed under an order of survey dated 10th September, 1798. Given under our hands, this 8th day of June, 1820-. Attest: (Signed) Charles S. Cosby, Register. F. Herault, Clerk. Fulwer Skipwith, Receiver. It will be observed that the name of the original claimant is here mentioned as Stephen Rene, and there is no mode of survey pointed out, the original order of survey not being produced. In 1822, Congress passed an act (3 Stat, at L., 707) giving to the registers and receivers power to direct the location and manner of surveying the claims to land confirmed by the act of 1819. . . • On the 21st of September, 1826, the register and receiver gave to Cousin the following order of survey: [Order of Survey.] Land Office, St. Helena. Francis Cousin, Certificate No. 178,1 Bated June 8th, 1820. j St. Tammany, Sept. 21,1826. Francis Cousin claims a tract of one thousand arpens of land, situate in the parish of St. Tammany, as purchaser from his father, Francis Cousin, deceased, who bought it from Louis Blanc, who bought it from the original owner, Gabriel Bertrand, and in virtue of certificate No. 178, dated 8th June, and signed Charles S. Cosby, register, and Fulwer Skipwith, DECEMBER TERM, 1856. 205 Cousin v. Blanc’s Executor et al. receiver, in which certificate it is alleged by this claimant that it is erroneously set forth that Stephen Rene was the original claimant; it appearing that this tract of land is fronting on Bayou la Liberte, bounded below by the tract of land of Mr. Girod, and above by a tract of land belonging to claimant. It is ordered that this claim be located and surveyed with a front extending on said bayou,‘from the land of said Girod to that of claimant above, and from these points on the bayou to run back for quantity. Given under our hands, this 21st day of September, 1826. (Signed) Samuel J. Rannells, Register. Will Kinchen, Receiver. The difference between this certificate and the other, as respects the derivation of title, will be manifest upon comparing the two. Upon this subject, the Supreme Court of Louisiana made the following remarks: 44 The counsel for plaintiff also objects to the certificate of 8th June, 1820, on account of the vagueness of description of the land donated. We consider this objection to be well founded. The description is, 4 One thousand arpens, situated in St. Tammany.’ It is plainly impossible to locate land by such a description as this. And when such is the case, the grant can produce no effect. (16 Peters, U. S. v. Miranda; 10 Howard, Villalobos v. U. S.; 15 Peters, U. S. v. Delestine; 11 Howard, Lecompte v. U. S.; 5 Annual, Ledoux v. Black.) “It is proper here to mention that the order of survey of 10th September, 1798, mentioned in the certificate, is not. produced, although formally called for by the opposite party. Had such an order of survey ever been given in evidence before the commissioner of land claims, it would have been recorded in the archives of the land office. (See acts of Congress of 1812 and 1819, above quoted.) “But no such record appears. “It was probably a consciousness of this defect in his title,, which induced the defendant’s ancestor to procure from Rannells and Kinchen, the successors of Cosby and Skipwith * in the office of register and receiver of the land office at St. Helena, the order of location and survey of the 21st Septem-w^ich defendants offer in evidence. , j This paper sets out by declaring that the first certificate aa d- erroneously stated the origin of defendant’s title, gives another and totally different origin to the same as the correct one, and orders a survey to be made, and the defendant’s donation to be located on the Bayou Liberte, between the lands 206 SUPREME COURT. Cousin v. Blands Executor et al. of certain proprietors named. The survey of Vanzandt was made in conformity to this order. 11 We view the amended certificate of the 21st September, 1826, and the survey under it, as nullities. For the certificate of Cosby and Skipwith followed strictly the report of the commissioner of land claims, confirmed by the act of Congress of 3d March, 1819. Therefore, in*correcting that certificate, Ran-nells and Kinchen took upon themselves to correct the report of the commissioner of land claims, and to make the act of Congress apply to a claim which was not mentioned in that report, and which was consequently never before Congress. “The Supreme Court of this State, in the case of Newport v. Cooper, (10 La. Rep.,) decided that the register and receiver of the land office at St. Helena were without power, by law, to reverse and annul a certificate granted by their predecessors. By parity of reasoning, are they without power to make amendments in such a certificate, which falsify the act of Congress on which the first certificate was based ? If the claimant could not locate the land claimed by him, under his claim as presented to the commissioner of land claims, and reported to Congress, that was a misfortune which the land officers at St. Helena had no power to remedy, by fabricating for him a new claim, seven years after the action of Congress upon the re port.” Under the order of September 21,1826, Vanzandt made a survey in 1845, which was one of the evidences of Cousin’s title. The history of the case in the State courts of Louisiana is given in the opinion of this court. It was argued by Mr. Janin for the plaintiff in error, and Mr. Benjamin for the defendants. Mr. Justice CATRON delivered the opinion of the court.. Evariste Blanc sued Terence Cousin, in the eighth District Court of Louisiana, invoking the aid of that court to settle a disputed boundary between the plaintiff and defendant. Cousin, instead of responding to the action, for the purpose of settling boundary, filed an answer, denying Blanc’s title to the property described in his petition, and setting up title in hiiiiself, and claiming damages against Blanc, who joined issue on the answer, and denied the validity of the title asserted by Cousin. This turned Cousin into a plaintiff, (as the State courts held,) and imposed on him the burden of proof to support his title. It was adjudged in the District Court, on the documents presented by Cousin, that he had no title whatever to any part of the land in dispute; and so the Supreme DECEMBER TERM, 1856. 207 Cousin v. Blanc's Executor et al. Court of Louisiana held on an appeal to that court, where the cause was reheard. Pending the appeal, Blanc died, and his widow and heirs were made parties. They prayed the benefit of the judgment of the court below, and also that it might be so amended by the Supreme Court as to give them the benefit of all that Blanc claimed in his petition—that is to say, 222.80 acres, according to certificate Ko. 1,280, showing a regular purchase from the United States; together with 1,240 arpens in superficies, according to a plan annexed to the original petition of Blanc; that they might be quieted in the possession thereof as owners, and that the 1,240 arpens may be bounded according to the plan. And to this effect the court gave judgment. The laws of Congress, and the acts of the officers executing them in perfecting titles to public lands, have been drawn in question, and construed by the decision of the Supreme Court of Louisiana in this case; and the decision being against the title set up by Cousin, under the acts of Congress and the authority exercised under them, it follows that jurisdiction is vested in this court, by the 25th section of the judiciary act, to examine the judgment of the State court; and, in doing so, we refer to the opinion of that court, which is made part of the record by the laws of Louisiana, and is explanatory to the judgment, of which it is there deemed an essential part. We refer to the opinion, in order to show that questions did arise and were decided, as required, to give this court jurisdiction. (9 How., 9.) This is necessarily so in cases brought here by writ of error to the courts of Louisiana, because no bill of exceptions is necessary there, when appeals are prosecuted.' The court of last rescfrt acts on the law and facts as presented by the whole record. t By relying on this source of information, as to what questions were raised and were decided by the State court, we are relieved from all difficulty in this instance. Cousin’s claim is assumed to have originated in a Spanish order of survey laid before the proper commissioner appointed under the act of April 25, 1812, whose duty it was to receive notices and evidences of claims, which were ordered to be recorded, by the commissioner. It was made the duty of the commissioner to report to the Secretary of the Treasury upon claims, and the evidences thereof, thus notified to him; which report the act directed should be laid before Congress by the Secretary. & In January, 1816, the report was transmitted by him to Congress. By the act of March 3d, 1819, Congress legislated m regard to the claims reported. By that act, two land 208 SUPREME COURT. Cousin v. Blanc's Executor et al. districts were established east of the island of Kew Orleans, and a register and receiver were provided for each. The books of the former commissioners, in which the claims and evidences of claims were recorded, were directed to be lodged with the register; and the register and receiver were vested with power “to examine the claims recognised, confirmed, or provided to be granted,” by the provisions of that act; they were instructed to make out, for each claimant entitled in their opinion thereto, a certificate according to the nature of the case, pursuant to the instructions of the Commissioner of the General Land Office; and, on the presentation at that office of such certificate, a patent was ordered to be issued. Francis Cousin’s claim was within the above description. As no provision was made by the act of 1819, vesting authority in the register and receiver to direct in what manner confirmed claims should be located and surveyed, it was (sec. 11) left to the deputies of the principal surveyor south of Tennessee, to find the lands, and survey them according to their own judgment. Then, again, the surveyors had no authority to adjust conflicting boundaries, and therefore further legislation was deemed necessary; and accordingly the act of June 8, 1822, was passed by Congress, giving the registers and receivers power to direct the manner in which claims should be located and surveyed, (sec. 4,) and power was also given to them to decide between parties whose claims conflicted. In June, 1820, the register and receiver gave Cousin a certificate of confirmation under the act of 1819. They certify “that claim Ko. 255 in the report of the commissioner, marked B, claimed by Francis Cousin, original claimant Stephen Rene, is confirmed as a donation, and entitled to a patent for one thousand arpens, situated in St. Tammany, and claimed under an order of survey dated 10th September, 1798.” Ko Spanish survey was found, to aid the foregoing description. In 1826, the register and receiver made an order of survey, as follows: “Land Office, St. Helena. “ Francis Cousin, Certificate No. 178, Dated June 8th, 1820. “Francis'Cousin claims a tract of one thousand arpens of land, situate in the parish of St. Tammany, as purchaser from his father, Francis Cousin, deceased, who bought it from Louis, Blanc, who bought it from the original owner, Gabriel Bertrand, and in virtue of certificate Ko. 178, dated 8th June, 1820, and signed Charles S. Cosby, register, and Fulwer Skip-with, receiver, in which certificate it is alleged by this claimant that it is erroneously set forth that Stephen Rene was the original claimant; it appearing that this tract of land is front- DECEMBER TERM, 1856. 209 Cousin v. Blanc's Executor et the plaintiff in this suit. Day, on the 2d July, 1853, gave notice to Judson of the assignment, offering to pay, at the same time, all sums there might be due him, u any there were, for moneys advanced in procuring the extension of the patent, or in any other way paid for Chaffee on 220 SUPREME COURT. Hartshorn et al. V. Day. account of said patent. The above is the substance of the case, as appears from the written agreements of the parties in the record. The questions involved turn essentially upon the points: 1. As to the operation and effect to be given to the three agreements which have been referred to, and especially of that of the 6th September, 1850, between Chaffee and Judson; and 2. The force and effect of the attempted rescindment of these agreements by Chaffee, on the 1st July, 1853, on account of the neglect or refusal of Judson to pay the annuity of $1,500. 1. It is not important to examine particularly the'agreement between Goodyear and Chaffee of 23d May, as that was, in effect, superseded by the one entered into with Judson, the 6th of September, to which Goodyear afterwards assented. It is important only as leading to the latter agreement, and may therefore assist m explaining its provisions. By this first agreement, Chaffee bound himself to assign to Goodyear the renewed patent, as soon as it was obtained, for the consideration of $3,000. Goodyear became thus equitably entitled to the entire interest in the patent during the extended term, and could have invested himself with the legal title on the payment, or offer to pay the three thousand dollars, had he not subsequently acquiesced in the modification of it with Judson. Judson was .the owner, jointly with Goodyear, of one-eighth of the patent. He was also the agent and attorney of Goodyear, generally, in his applications for patents, in obtaining renewals, and in the litigation growing out of the business; and was the trustee of a fund provided by Goodyear to meet the expenses. It was, doubtless, on account of this interest of Judson in the improvement, and his general authority from Goodyear in the management of his patent concerns, that led him to enter into the new arrangement with Chaffee, of the 6th September, in the absence of his principal. Goodyear might have repudiated it, and insisted upon the fulfilment of the first agreement. He thought fit, however, after a full knowledge of the facts, to acquiesce; and his rights, therefore, and those claiming under him, must depend upon this second agreement.' In respect to this agreement, whether the title which passed from Chaffee, in the renewed patent to Judson, was legal or equitable, the court is of opinion that the entire interest and ownership in the same passed to him for the benefit of Goodyear, and those holding rights and licenses under him. The instrument is very inartificially drawn, but the intent ana DECEMBER TERM, 1856. 221 Hartshorn et al. v. Day. object of it cannot be mistaken. Chaffee, in consideration of the premises, which included the annuity of $1,200, “and (in his own language) to place my (his) patent so that in case of death, or other accident or event, it (the patent) may enure to the benefit of said Charles Goodyear, and those who hold a right to the use of said patent, under and in connection with his licensees,” &c., nominates and appoints “said William Judson, my trustee and attorney irrevocable, to hold said patent, and have the control thereof, so that no one shall have a license, &cf, other than those who had a right to use the same when said patent was extended, without the written consent of said Judson;” and at the close of the agreement, he reserves the right to use the improvement in his own business. At this time, as we have seen, Judson was the owner of one-eighth of the patent, and was the general agent and attorney of Goodyear in all his patent buisiness transactions. It is apparent that the only interest in the patent, left in Chaffee, was the right reserved for his own personal use. The annuity and indemnity against the expenses of the renewal were the compensation received by him for parting with the improvement. The contract of the 12th Kovember has no material bearing upon this part of the case. Most of the provisions were for the benefit of Judson, in relation to the licensees under Goodyear. The only provision important to Chaffee is the. stipulation for the increased annuity of $1,500. 2. Then, as to the attempted rescindment of the contracts. The agreement of 6th' September had been in force from its date down to the 1st July, 1853, a period of two years and nearly ten months. During all this time, the licensees of Goodyear, at the date of the renewal of the patent, and those whom Judson may have granted a license to since the renewal, had a right to use the improvement, and especially the Shoe Associates, referred to in their agreement with Goodyear, 1st July, 1848. Besides this stipulation with Goodyear, their right was expressly recognised by Chaffee himself, in the agreement with Judson of 6th of September. The effect of the rescindment as claimed, and which would be necessary to enable the plaintiff to succeed in Jiis action against the defendants, would be to break up the business of these licensees, by divesting them of their rights under this agreement—rights acquired under it from all parties connected with or concerned in the patent, and especially from Chaffee, the patentee, who placed it in the hands of Judson, for the benefit of Goodyear and those holding under him. The effect would also be to deprive Goodyear or Judson, or whichever "■ of them had paid the expenses of obtaining the renewal, of the 222 SUPREME COURT. Hartshorn et al. V. Day. equivalent for those expenses, except as they might have a personal remedy against Chaffee. To the extent above stated, the agreement of the 6th September was already executed, and, in respect to parties concerned, the abrogation would work the most serious consequences. As we have already said, the ground upon which the right to put an end to the agreement is the refusal to pay the annuity of $1,500 after December, 1852. Judson proposed to Chaffee to resume the payment in June, 1853, which was declined; but we attach no importance to this fact, especially as we are in a court of law. But, in looking into the agreements of the 6th of September, and also the one of the 12th of November, the court is of opinion that the payment of the annuity was not a condition to the vesting of the interest in the patent in Judson, and of course that the omission or refusal to pay did not give to Chaffee a right to rescind the contract, nor have the effect to remit him to his interest as patentee. The right to the annuity rested in covenant, under the agreement of the 12th of November. One of the objects of that agreement was, to obtain from Judson this covenant. From the terms and intent of the agreement, the remedy for the breach could rest only upon the personal obligation of Judson, as, by the previous one of the 6th of September, the interest in the patent had passed to Goodyear and his licensees, and no default or act of Judson could affect them. Chaffee chose to be satisfied with the covenant of Judson, without stipulation or condition as it respected the other parties, and he must be content with it. The cases of Brooks v. Stolly, (3 McLean, 526,) and Woodworth v. Weed, (1 Blatchford, 165,) have no application to this case. The attempt to rescind the contracts, being thus wholly inoperative and void, in the opinion of the court, of course no interest in the patent passed to Day, under the assignment of the 1st July, 1853. Evidence was given on the trial in the court below, for the purpose of proving that the agreement of the 6th of September was procured from Chaffee by the fraudulent representations of Judson, which was objected to, but admitted. The general rule is, that in an action upon a sealed instrument in a court of law, failure of consideration, or fraud in the consideration, for the purpose of avoiding the obligation, is not admissible as between parties and privies to the deed; and, more especially, where there has been a part execution of the contract. The difficulties are in adjusting the rights and equities of the parties in a court of law; and hence, in the States where the two systems of jurisprudence prevail, oi DECEMBER TERM, 1856. 223 Hartshorn et al. v. Day. equity and the common law, a court of law refuses to open the question of fraud in the consideration, or in the transaction out of which the consideration arises, in a suit upon the sealed instrument, but turns the party over to a court of equity, where the instrument can be set aside upon such terms as, under all the circumstances, may be equitable and just between the parties. A court of law can hold no middle course; the question is limited to the validity or invalidity of the deed. Fraud in the execution of the instrument has always been admitted in a court of law, as where it has been misread, or some other fraud Or imposition has been practised upon the party in procuring his signature and seal. The fraud in this aspect goes to the question whether or not the instrument ever had any legal existence. (2 J. R., 177; 13 Ib., 430; 5 Cow., 506; 4 Wend., 471; 6 Munf., 358; 2 Rand., 426; 10 S. and R., 25; 14 Ib., 208; 1 Alab., 100; 7 Misso., 424; 4 Dev. and Bat., 436; C. and H., Notes, part 2, p. 615, Note 306, ed. Gould & Banks, 1850.) It is said that fraud vitiates all contracts, and even records, which is doubtless true in a general sense. But it must be reached in some regular and authoritative mode; and this may depend upon the forum in which it is presented, and also upon the parties to the litigation. A record of judgment maybe avoided for fraud, but not between the parties or privies in a court of law. The case in hand illustrates the impropriety and injustice of admitting evidence of fraud to defeat agreements of the character in question in a court of law. We have a record before us of 1,055 closely-printed pages of evidence submitted to the jury, and a trial of the duration of some six weeks. Goodyear and his licensees had acquired vested and valuable rights under the agreements in this patent, and whozwere in no way privy to, or connected with, the alleged fraud, nor parties to this suit; and yet it is assumed, and without the assumption the fraud would be immaterial, that the effect of avoiding the agreements would be to abrogate these rights. They had been in the enjoyment of them for nearly three years, and may have invested large amounts of capital in the confidence of their validity. They were derived from Chaffee himself, the patentee of the improvement. A court of equity, on an application by him to set aside the agreements on the ground of fraud, would have required that these third parties m interest should have been made parties to the suit, and would have protected their rights, or secured them against loss, if it interfered at all, upon the commonest principles of equity jurisprudence. 224 SUPREME COURT. Slater v. Emerson. Some slight evidence was given in the court below, upon the question whether the agreement of the 6th of September was sealed at the time of the execution. But the instrument produced was sealed, and is recited in the subsequent agreement of the 12th November, as an agreement signed and sealed by the parties. A question was also made, as to the authority of the Shoe Associates to grant a license to the defendants. But they held under Goodyear the right to the exclusive use of the improvement for the manufacture of boots and shoes. They were competent, therefore, to confer the right upon the defendants. Besides, the point is not material in the view the court have taken of the case, as upon that view no interest in the patent vested in the plaintiff under the assignment from Chaffee. It will be seen, by a reference to the bill of exceptions, that upon our conclusions in respect to several points raised in the case, the rulings in the court below were erroneous, and consequently (the judgment must be reversed, and a venire de novo awarded. Horatio N. Slater, Plaintiff in Error, v. Charles Emerson. Where a railroad company became embarrassed, and were unable to pay the contractor, and a person interested in the company agreed to give the contractor his individual promissory notes if he would finish the work by a certain day, the contractor cannot recover upon the notes, unless he finishes the work within the stipulated time. This case was brought up, by writ of error, from the Circuit Court of the United States for the district of Massachusetts. The facts are stated in the opinion of the court. It was argued by Jfr. Sates and Mr. Bartlett for the plaintiff in error, and by Mr. Hutchins upon a brief filed by himself and Mr. Choate for the defendant. The following points on behalf of the plaintiff in error are taken from the brief of Mr. Bartlett, as being more condensed than those stated in the brief of Mr. Bates: 1 I. The single question is, whether by the true and rationa construction of the contract it was agreed and understood between the parties that the doing the wTork within the time pre- DECEMBER TERM, 1856. 225 Slater v. Emerson. scribed was a condition on which the obligation of plaintiff to give his notes was to depend. a. It is not sufficient to say that the parties, if such was their intent, might have expressed it so in terms, or might have secured damages for non-performance by an independent covenant. The books abound in cases where parties having inarti-ficially expressed their purpose, the court have construed their agreement to be dependent. This want of express terms, therefore, though it may possibly lead in doubtful cases to a presumption, is of value solely in that contingency. b. We are to find, then, either from the reason of the thing, looking at the position of the parties and the surrounding circumstances, or by the application of the settled rules of construction, or by both, what was the intent of the parties; and, 1. The position of the parties is new and unusual. It is believed that a similar case is not to be found in the books. Usually the controversy is between a party contracting to perform and a party who is to enjoy the benefit of the thing to be performed. Here the question is upon the construction of a contract collateral to another, between other parties, which may be called the principal contract; and the entire direct fruits of performance are to be enjoyed by one of those other parties. 2. The extrinsic evidence shows that at the time of making the contract in question another negotiation' was, with the knowledge of all parties, pending between one of the parties to the principal contract and a third party, of great pecuniary importance, the consummation of which was entirely dependent on the ability of one of the parties to open its road, at a fixed time. That fixed time was the precise period prescribed for the completion of the work bu the contract in question. (Ammidown’s Testimony.) 3. Such are the surrounding circumstances, and before examining the terms of the contract and the settled rules of construction, it may be fairly asked whether defendent in error, who was already performing and bound to perform the work under another contract for the same remuneration, would be hkely to agree that the covenant of plaintiff in error should be dependent, and this, too, when the notes to be given him were not to pay for the labor to be performed under the contract, but to an existing indebtedness of railroad to defendant in error. (Willis’s Testimony.) And also whether plaintiff in error would be likely to make any other than a dependent agreement to pay on condition an old debt of a third party. H. With these preliminary views, wd proceed to examine the terms of the contract, and the usual rules of construction. vol. xix. 15 226 SUPREME COURT. Slater n. Emerson. a. The terms of agreement by defendant in error are, “that he will complete all the bridge work to be done by him for the Boston and New York Central railroad, ready for laying down the iron rails for one track, on the first day of December next. b. The agreement on the part of the plaintiff in error is, “that, in consideration of the premises, he will pay, within two days from the date hereof, the sum of $4,400 in cash; and that he will give said Emerson, on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, his five notes for $2,000 each, payable in six months; said notes, when paid, to be applied toward the indebtedness of said Railroad Company to said Emerson.” 1. The agreement on the part of plaintiff is 11 in consideration of the premises,” and technically these are apt words to create a condition. (Thorpe v. Thorpe, 1 Ld. Raymond, 665; Ackerly v. Vernon, Willes, 157.) 2. That the agreement to give the notes was at least dependent upon prior performance, would seem free from all doubt. This is tested by considering whether an action, on the contract could have been maintained before the work was done. It falls clearly in this respect within the technical rule. 44 When a day is appointed for the payment of money, &c., and the day is to happen after the thing which is the consideration of the money, &c., is to be performed,” no action can lie. (Bean v. Atwater, 4 Connecticut, 9; Pordage v. Cole, 1 Saunders, 320; Day v. Dox, 9 Wendell, 129.) The fact that the notes were not to be given upon performance, but at a period after performance, does not affect it. This only shows that it does not belong to another class of dependent agreements, viz: Where two acts are to be done at the same time, or cases of concurrent covenants, as they are called. (Glazebrook v. Woodrow, 8 T. R., 374; Williams v. Healy, 3 Denio, 363; Gaihzly v. Price, 16 Johnson, 267.) 31 Nor does the fact that payment of part of the consideration (viz: the $4,400) was to be made before performance, affect the question whether the agreement for a final payment was dependent or independent. The old case of Terry v. Duntzie, (2 Henry Blackstone, 389,) from which the opposite doctrine was derived, was unfounded in reason, and has been declared not to be law here and in England. (Cunningham v. Morrell, 10 Johnson, 203; Hopkins v. Elliot, 5 Wendell, 496; Grant v. Johnson, 1 Selden, 247; Johnson v. Reed, 9 Mass., 78;. Lord v. Belknap, 1 Cushing, 279; Watchman v. Crooke, 5 Gill and Johnson, 254; Bean v. Atwater, 4 Connecticut, 4; Kettle v. Harvey, 21 Vermont, 301; McClure v. Rush, 9 Dana, 64.) 4. But it may be said, that although performance was a con DECEMBER TERM, 1856. 227 Slater v. Emerson. dition precedent to delivery by plaintiff of his notes, yet performance within the time was not so. a. It is important on this point to distinguish between the question whether non-performance within the time will, because of the agreement being dependent, defeat a recovery on the contract itself, and the question whether, notwithstanding such non-performance, assumpsit will not lie to recover for the labor and materials. b. It would seem to be the settled rule, both here and in England, that if plaintiff has not performed the work in exact accordance with the contract, and there has been no waiver, he cannot recover on the contract, but must recover, if at all, on the common counts for his labor and materials. (2 Greenleaf’s Evidence, secs. 104,136; Chapel v. Hicks, 2 Crompt and Mee, 214; Readv. Banner, 10 B. and C., 440; Alexander v. Gardner, 10 Bingham H. C., 671; Chater v. Leese, 4 M. and W., 295, 311; Jewell v. Schroepel, 4 Cowen, 564; Ladua v. Seymour, 24 Wendell, 62; Britton v. Turner, 6 H. H., 481.) c. Unless, therefore, time of performance might, in a declaration on the contract, be wholly omitted, this case falls within the rule, and plaintiff would be remitted to his common counts*; that it could not be so omitted, plaintiff in error refers to Phillips v. Rose, 8 Johnson, 393; Jewell v. Schroepel, 4 Cowen, 565; Smith v. Guy arty, 4 Barbour, 615; Ladua v. Seymour, 24 Wendell, 61; Gregory v. Hincks, 3 Hill, 380 ; Watchman v. Crooke, 5 Gill and Johnson, 254; Farnham v. Ross, 2 Hall, 167. d. As to to the right of defendant in error to recover on common counts, no discussion is necessary. The ruling excepted to declares the agreements to be independent, and that recovery may be, and it was in fact, had upon the counts on the special contract. HI. But, besides and beyond the artificial rules above adverted to, and under which it is submitted plaintiff in error is safe, there are others, founded on the plainest principles of equity and justice, which have guided, if not controlled, the courts, in their construction of this class of contracts; and it is upon these and their application that the case must turn., Of these, the principal ones are— 1. Where non-performance by plaintiff deprives the defendant, not of part, but of the entire consideration of the contact, the agreement of defendant shall be deemed dependent. (Pordage v, Cole, 1 Wms. Saunders, 320; Duke St. Albans v. fchore, 1 H. Black, 270; Dakin v. Williams, 11 Wendell, 67; o V' Smith’14 M- and 695-) A Where defendant, in case of plaintiff’s non-performance, 228 SUPREME COURT. Slater v. Emerson. has no other remedy for the injury he sustains except by de-claring his agreement dependent. (Pordage v. Cole, 1 Wins. Saunders, 319.) 3. Where the amount of the consideration which defendant will be absolved from paying plaintiff, if his agreement be deemed dependent, is not, or may not be, commensurate with the injury sustained by plaintiff, or, in the language of this court, there “is no natural connection” between the two; in such case, defendant’s contract shall be construed to be independent. Tn discussing the application of these principles, plaintiff in error submits at the outset, that almost all the rules of construction in this class of cases are founded upon a struggle of the courts to avoid the old and long-standing doctrines of forfeiture. Thus the rule, that in case of failure to perform, when such failure deprives defendant only of part of the consideration to be received by him, the agreement shall be deemed independent, is founded solely on the ground' of forfeiture, and the want of equity in allowing defendant to keep and enjoy the labor and materials of the plaintiff without compensation. So, ■also, the doctrine, that there is no natural connection between the sum due plaintiff at the time of breach, and the injury sustained by defendant by such breach, proceeds wholly on the thought that the sum so due is forfeited by the breach. But in the class of cases to which the present one belongs, the doctrine of forfeiture is exploded, and it is well settled that the value of the labor and materials to defendant may be recovered on quantum meruit notwithstanding the, breach. The reason of the rule having therefore ceased, the doctrine will bear revision. ... a. As to the first of the above rules, plaintiff in error submits that the failure to perform by defendant, although it left the fruits of his labor in the hands of the railroad, with whom he contracted to do it, and who are fully bound to pay him for it, yet deprived plaintiff in error of the whole consideration for which he made the contract, viz: the time within which performance was to take place. b. It is important to note that the doctrine regards merely the question of consideration moving from plaintiff to defendant, not .the consideration arising from plaintiff’s altered condition in consequence of the contract. It seeks to avoid circuity of action which would arise if plaintiff recovered the agreed $um’ and defendant, by cross action, recovered it back. St. Albans v. Shore, 1 H. Black., 270; Pordage v. •; Wms. Saunders, 319; Bakin v. Williams, 11 Wendell, 67; Atkinson v. Smith, 14 M. and W., 65.) DECEMBER TERM, 1856. 229 Slater v. Emerson. 1. The necessity for making time a condition of the contract, and the probability that both parties would assent to make it so, have been adverted to, and plaintiff in error now submits, that unless time was the whole consideration, moving from defendant in error to plaintiff in error, there was no consideration at all. » a. For there was already a contract between the defendant in error and the railroad (subsisting and referred to as obligatory in this very contract) to do this same work, the terms of which were not varied one word, except in relation to this very matter of time. The matter of time, then, was the only change effected, and the only benefit derived to plaintiff in error. 5. If both contracts had been made by plaintiff' with the railroad, would there have been any other consideration to support the additional contract except time ? c. It cannot be said that the work was done for the plaintiff^ or at his request, or for his benefit, so as to form a consideration moving from the defendant in error to him—for it was to be performed, so far only as time was concerned, at his request, and its direct benefit was solely to the railroad. His relation to the railroad was merely that of an officer, a creditor, and a stockholder; and it is believed that upon no known principles^ of law could damages be ascertained and assessed in his favor, for a deprivation of such a remote benefit, if defendant in error had failed to perform. 2. This last suggestion, if well founded, emphatically supports the second of the above grounds, viz: that the only remedy plaintiff in error can have for the breach of his agreement by defendant, is to construe his covenant to give his notes to be dependent on complete performance by defendant. 3. The last ground which is often relied on to show the covenants to be independent is, that there is no natural connection between the sum which is claimed to be paid defendant in error and which plaintiff seeks to withhold, and the amount of damages which plaintiff may sustain by defendant’s noh-performance. If plaintiff in error had in fact received and was now enj°ying the results of defendant’s labor and materials, and if non-performance would leave defendant in error without remedy, this would be a forcible reason for holding the covenant of plaintiff in error to be independent. . o. But even in such case, as it is settled that no forfeiture is incurred, but defendant might, as against party enjoying the benefit of his labor and materials, maintain an action for his quantum meruit in which the injury by non-performance might 230 SUPREME COURT. Slater V. Emerson. be set off and adjusted, it is submitted that the harmony of the law and the symmetry of pleading, which requires in actions on special contracts an allegation of complete, performance, would be best preserved by obliging the party to resort to the common counts. c. But, however this may be in other cases, in this case plaintiff in error does not hold and enjoy the benefit of defendant’s labor and materials, but a third party, who has contracted with defendant to pay for them. The defendant is not without remedy against that party, and there may be said to be a natural connection between the amount which defendant in error loses, which is nothing, and the damage which plaintiff in error could recover for breach, which by law cannot, by reason of remoteness, be shown to be anything. In other words, the rule and its reason has no application to a collateral contract, in its nature a guaranty, when, for want of strict performance of the terms of the guaranty, one party has lost his remedy, and the other received ho appreciable benefit. IV. The remaining exception is to the ruling of the court, compelling plaintiff in error to prove and adjust his damages for breach of the contract by way of offset, recoupment, or reduction of damages of defendant in error in this action, and thus depriving him of his election to bring a cross action. Plaintiff in error has been able to find no case in which the doctrine is established, that it is compulsory on a defendant to come prepared with his proofs of such damage, or have the damages assessed at a. nominal sum, and be barred of his cross action. The question may be important in this case, the principle is fit to be settled, and plaintiff in error submits that the ruling was wrong. V. The statement of counsel to Emerson should have been admitted to show that, in opinion of Emerson, the work could have been done by December 1st. Points of defendant in error: I. The first exception is as follows: “The defendant offers to prove, that just prior to the signature of the contract, both parties being present, the counsel of the plaintiff told him that, unless he was sure that he could complete the bridges by December first, he ought not to sign the contract, and could not recover if he did not complete them by December first; but the, court refused to admit the same.” To which refusal the defendant excepted. Such testimony was clearly inadmissible. The contract must speak for itself. The conversations of the parties, their understandings and expectations, and the suggestions of counsel, DECEMBER TERM, 1856. 231 Slater v. Emerson. cannot affect or control the construction of this contract. This would be to vary or modify its terms by parol. (1 Greenleaf on Evidence, sec. 275, p. 327; Weatherhead’s Lessee v. Baskerville, 11 Howard; Van Buren v. Digges, 11 Howard, 461; Grant v. Kaylor, 4 Cranch, 224.) H. The second exception is as follows: “The defendant offers to prove that, at the time the contract was drawn up, the element of time was talked over by the plaintiff and the defendant, and that plaintiff assented that time was the’essence of the contract; but the court refused to admit the same.” To which refusal the defendant excepted. The same answer may be made to this as to the first exception. When the contract is reduced to writing, all the conversations of the parties, leading up to it, are merged in it. (1 Greenleaf on Evidence, sec. 275, p. 327.) DI. The third exception is as follows: “The defendant moved the court to rule and instruct the jury, that by the true construction of said contract declared upon, the plaintiff would not be entitled to recover, without showing that the work was completed, ready for laying down the rails for one track, by the first day of December, 1854; but the court refused so to instruct the jury, but did instruct them, that the agreement on the part of the defendant, to give the notes in said agreement mentioned, was not dependent upon the completion of said work, ready for laying down said rails for one track, at the time limited by said contract.” To which ruling the defendant excepted. It is sometimes difficult to determine whether covenants and promises are dependent or independent. Some rules of construction are laid down in the books, but, after all, each case is to be governed by its own circumstances. (Philadelphia W. and B. K. R. Co. v. Howard, 13 Howard, 307.) 1. The courts incline to consider covenants and promises independent, rather than dependent, to save forfeitures. The burden is on him who alleges dependency. (Platt on Covenants, p. 35, [78, 79,] Law Library, vol. 3.) If there are no terms which import a condition, or which expressly make one promise dependent on the other, they are construed to be independent; and in this contract there are no such. Platt on Covenants, Law Lib., vol. 3, p. 32, [72, 73.] More than this the terms import the contrary. In that part containing the promise, the condition of time is wholly omitted— thus indicating an intention not to make it dependent on time, but on work done. 2. The failure to perform on the day does not go to the whole consideration, and there is no natural connection be 232 SUPREME COURT. Slater v. Emerson. tween the amount to be paid for the work done after the day, and the injury or loss inflicted by a failure to perform on the day. (Platt on Covenants, Law Lib., vol. 3, p. 40, [90, 94;] Philadelphia W. and B. R. R. Co. v. Howard, 13 Howard.) 3. The forfeiture of the amount to be paid for the whole work, in consequence of its not being completed by the day, would be unreasonable in this case. By construing the promises as independent, the plaintiff can recover his exact damages (if any) or have them recouped. Thus the rights of both parties are secured. Platt on Covenants, vol. 3, Law Lib., p. 40, [90.] 4. The defendant in error completed the bridges. The plaintiff in error has had the benefit of his labor. The objection is, that it was not done at the day, (for which, however, the plaintiff in error claimed no damages.) It would be manifestly inequitable for the plaintiff in error to receive the benefit of this labor without paying for it. The objection taken is technical, and ought not to be sustained, unless the language is clear, and the rule of law imperative. (Philadelphia v. W. and B. R. R. Co., 13 Howard, 307; Van Buren v. Bigges, 11 Howard, 461.) 5. The promise of the plaintiff in error was not dependent upon the completion of the bridge work by December 1st, because the notes were not to be given upon the completion of the bridges. Something more was to be done, to wit, the laying of the rails by another party. How can the promise of the plaintiff in error be said to be dependent upon the completion of his work by December 1st, when the completion of the work at that time would not then entitle the defendant in error to his notes ? 6. When the acts stipulated to be done, are to be done at different times, the stipulations are to be construed as independent of each other. (Goldsborough v. Orr, 8 Wheaton, 217.) Taking this decision as a guide, these promises must be construed as independent; for the promise of the defendant in error was to complete the bridges by December 1st, whereas the promise of the plaintiff in error was not to give the notes at that time, but when the rails were laid. • 7. The plaintiff in error promised to pay the defendant in error $4,400 in cash, within two days from the date of the contract, and to give his notes upon the completion of the bridges and laying the rails. So far as this cash payment, is concerned, the promise is clearly independent, as it necessarily preceded the completion of the work. If the construction contended for by the plaintiff in error be adopted, the same promise will be construed both as dependent and independent DECEMBER TERM, 1856. 233 Slater v. Emerson. dependent as to the giving the notes, independent as to the payment of cash. Platt on Covenents, Law Library, vol. 3, p. 43, [96/] IV. The fourth exception is as follows: “ The defendant further requested the court to rule and to instruct the jury, that if the plaintiff failed to complete said work, ready for laying down the iron rails for one ‘track, by the said first day of December, there was thereby a failure of the consideration of said contract, and* the plaintiff would not be entitled to recover the amount- claimed by him, or any part thereof; but the court refused so to instruct the jury.” To which refusal the defendant excepted. Very clearly, these instructions ought not to have been given. The consideration of the plaintiff in error’s promise to pay the money and to give the notes, was the promise of the defendant in error to do the work, and not merely his promise to do it by December 1st. He having completed the work to their acceptance, there was clearly not a total failure of consideration. V. The last exception is as follows: “His honor the judge having first called upon the defendant to offer evidence, if he saw fit, of any actual damage by him sustained by the nonperformance of said work within the time limited by said contract, and the defendant declining to offer any such evidence, and admitting that no such actual damage was claimed by him in this suit, and that sum was stated as the consideration in the deed. Of this sum, only $408.18, and interest, were due to Babcock in his individual capacity. In his answer, the defendant states that the conveyance was made in payment of the sums due him personally; that he did not cancel the notes held by him as executor or trustee, because he was not satisfied that he should receive enough from the land to pay those debts. But the proof shows, that the debt due him as executor and agent, and also his individual debt, were all included in the consideration named in the deed. The defendant made no advance to the witness, on the note and mortgage for twelve hundred dollars; but, at the date of the subsequent conveyance, the defendant had advanced to and which, as above stated, constituted ' defendant on his personal account. Ihe conveyance was made to the defendant, the witness swears, with the express understanding, that Babcock was to ave the entire management of the land, so as to apply the proceeds in payment of the interest, and witness was to have e land again on paying the sums specified. He was induced •wr4?. e the Conveyance by the urgent request of his brother William, andTBabcock; his brother told him, if he did not 298 SUPREME COURT. Babcock v. Wyman. make it, he would not assist him in his pecuniary matters. On the execution of the deed, none of the notes held by Babcock were cancelled, or surrendered to the witness; but they are still held against him. The witness says that Babcock promised to keep an account of the receipts of the land conveyed to him; but in his answer he says he kept no account, “because the land and rents and profits were his own, without any liability to account to any one.” Such a transaction as set out in the bill, between brothers-in-law, in the nature of things might be supposed to have taken place in the mutual confidence of the parties; and in the final adjustment there should be no evasions or subterfuges to gain an advantage. So far as regards the deed under consideration, all the material allegations of the bill are proved, and all the material averments of the answer seem to be unfounded. In coming to this conclusion, we do not rest alone on the witnesses, Nehemiah and William Wyman. There are strong circumstances which corroborate the witnesses, and satisfy the mind beyond a reasonable doubt. In his answer, the defendant avers that the land was conveyed to him in payment of the sums due him personally. It appears from the oaths of both the Wymans that this is not correct; and, in addition, it is shown by the memorandum made out at the time, stating the sums for which the land was conveyed, in the handwriting of the son of the defendant. Taking the statement of the defendant as true, that he did not intend to make himself responsible for the debt due to him as executor and agent at the time the deed was executed, presents him in an unfavorable light. The land for which he received a deed from Nehemiah Wyman, he was aware, had been previously mortgaged to secure the debt in his hands as executor of Francis Wyman. Could he have carried out this declared? intention, he would have been unfaithful to the trust committed to him. . r „ William Wyman seems to be a man of business. He drew the conveyance from his brother Nehemiah to his brother-in-law Babcock, and he took:, in other respects, an active agency in the transaction; and he states the facts as alleged in tfie bill, and his statement is in every respect corroborated by his brother Nehemiah; and although the trust is denied in the answer, there are circumstances in the case which go strongly to establish it. The defendant admitted all the facts to William Wyman, and promised to settle the account, and spoke of the principles on which it should be adjusted, but eventually ^e took refuge DECEMBER TERM, 1856. 299 Babcock v. Wyman. under the statutes of frauds, of limitations, and the lapse of time. We think there can be no reasonable doubt that the deed in controversy was intended to be a mortgage. And this brings us to the second point of inquiry: Can the trust be established by parol testimony ? If the doctrine of this court is to be adhered to, as laid down in the case of Russell v. Southard, (12 How., 154,) this is not an open question. In that case the court say: “To insist on what was really a mortgage, as a sale, is in equity a fraud.” And in Conway v. Alexander, (7 Cranch, 238,) Chief Justice Marshall says: “ Having made these observations on the deed itself, the court will proceed ,to examine those extrinsic circumstances which are to determine whether it was a sale or a mortgage.” In Morris v. Nixon, (1 How., 126,) the court say: “The charge against Nixon is substantially a fraudulent attempt to convert that into an absolute sale, which was originally meant to be a security for a loan. It is in this view of the case that the evidence is admitted to ascertain the truth of the transaction, though the deed be absolute on its face.” In Edrington v. Harper, (3 J. J. Marshall, 355,) the court say: “The fact that the real transaction between the parties was a borrowing and lending, will, whenever or however it may appear, show that a deed absolute on its face was intended as a security for money; and whenever it can be ascertained to be a security for money, it is only a mortgage, however artfully it may be disguised.” In Jenkins v. Eldredge, (3 Story’s Rep., 293,) Mr. Justice Story said: In 4 Kent, 143, (5th edit.,) it is declared, “a deed absolute upon the face of it, and though registered as a deed, will be valid and effectual as a mortgage between the parties, if it was intended by them to be merely a security for a debt. And this would be the case, though the defeasance was by an agreement resting in parol; for parol evidence is admissible to show that an absolute deed was intended as a mortgage^ and that the defeasance had been omitted by fraud or mistake.” In 2 Sumner’s Rep., 228, 232-’3, Judge Story said: “It is the same, if it be omitted by design upon mutual confidence be-tween the parties; for the violation of such an agreement would be a fraud of the most flagrant kind, originating in an open breach of trust against conscience and justice.” In Eoy v. Foy, (2 Hayward, 141:) “In North Carolina, it is said the law on this subject is the same as the English law was before the statute of frauds, and parol declarations of trust are valid.” “Where a testator gave by will all his estate to his wife, having confidence that she would dispose of it according to his views communicated to her, and it being alleged 300 SUPREME COURT. Babcock v. Wyman. that the testator, at the time of making the will, desired his wife to give the whole of the property to B, and that she promised to do it, it was held, that the allegation being proved, a trust would be created as to the whole of the property in favor of B.” (Podmore v. Gunning, 7 Simons, 644.) Parol proof is admissible to show fraud, and consequently a resulting trust, in a deed absolute on its face, notwithstanding any denial by the answer. (Lloyd v. Spillote, 2 Atk. Rep., 150; Ross v. Ne wall, 1 Wash. Rep., 14; Watkins v. Stockett, 6 Har. and Johnson, 435; Strong v. Stewart, 4 John. Ch. Rep., 167; English v. Lane, 1 Porter’s Ala. Rep., 318.) In Boyd v. McLean, (1 John. Ch. Rep., 582,) it was held, after an examination of the cases, “that a resulting trust might be established by parol proof, not only against the face of the deed itself, but in opposition to the answer of the nominal purchasers denying the trust, and even after the death of such purchaser.” The statute of frauds in Rhode Island contains no exception in favor of resulting trusts, but Mr. Justice Story considered the exception immaterial, for it has been deemed merely affirmative of the general law. (1 Sumner, 187.) Where a trustee misapplies the fund, it may be followed, however it may have been invested, by parol, as between the parties, or a purchaser with notice. So, where an estate was purchased in the name of one person, and the consideration came from another, a resulting trust may be established by parol—and in all cases where there is a resulting trust. In Hayworth v. Worthington, (5 Black., 361,) it was held that parol evidence is admissible to prove that a bill of sale of goods, absolute on its face, was intended by the parties to be only a mortgage. The court say these decisions are founded upon the assumption that the admission of such evidence is necessary for the prevention of fraud. (Cas. Temp. Talbot, 62; King v. Newman, 2 Munf., 40; Strongs. Stewart, 4 John. Ch. Rep., 167; Dunham v. Dey, 15 John. R., 555; Walton v. Cronly’s Adm’r, 14 Wend., 63; Van Buren v. Olmstead, 5 Paige, 9.) In the case of Overton v. Bigelow, (3 Verger, 513,) it was held, “that an absolute bill of sale of negroes may be converted into a mortgage by a pardl agreement to allow the convenor to redeem; and this agreement may be inferred from the price given, and the mode of dealing between the parties.” The case of Walker v. Locke et al. (5 Cushing, 90) is considered as having no application to the case before us. It is well known that until within a few years the courts of Massachusetts had no chancery jurisdiction. The jurisdiction, when first conferred by statute, was limited to cases of specific exe DECEMBER TERM, 1856. 801 Babcock v. Wyman. cution of contracts and trusts, not including fraud as a ground of relief. Within some one or two years past, the. jurisdiction has been extended to frauds, hut this has been dohe since the decision in the case above cited. If the decision had been made since the extension of the jurisdiction beyond the construction of the local statutes, we should consider it only as the decision of a highly respectable and learned court, and not as a rule of decision for this court. It is admitted that the authorities bn the question before us are conflicting in this country and in England; but as this court in several cases have decided the point, and it is now and has been for several years past a rule of decision, we are not prepared to balance the State authorities, with the view of ascertaining on which side the scale preponderates. The third point regards the lapse of time and the statute of limitations. In his answer, the defendant avers that the pleadings show a possession by him of more than twenty years before the institution of this suit, and that that possession has never been disturbed; and also that the proceeds of sale were received more than six years before the bill was filed, and these facts are relied on to bar the right of the complainant. It is clear that the statute cannot constitute a bar in the present case. Courts of equity apply the statute by analogy to cases at law; but in this case, the trust being established, there was no adverse possession in favor of which thq statute could run. The possession was consistent with the intentions of the parties, until the fraud was discovered, in 1851. Nor can the statute bar the right of the complainant to the proceeds of the land, as Babcock was bound to apply these to the payment of interest on the debt, and in discharge of the principal. The decree of the Circuit Court is affirmed with costs. Mr. Justice CATRON and Mr. Justice CAMPBELL dissented. Mr. Justice CATRON dissenting. .The opinion just pronounced maintains that a deed in fee, without conditions, and made in that form, according to an agreement of the parties at the time, may be' proved to have been a mortgage by parol evidence, establishing that a defeasance was part of the agreement when the absolute deed was executed; but that it was left out by design. And that this parol proof may be made, after the lapse of more than twenty years from the date of the deed before the grantee was sued; 302 SUPREME COURT. Babcock v. Wyman. he having been in possession of the land conveyed, holding it under the deed from its date up to the time when the suit was brought. The defendant (among other things) relied on the statute of frauds as a defence to the suit. Lord Hardwicke lays down the rule (in Montacute v. Maxwell, 1 P. Williams, 618) to be, that where there was no fraud or mistake in the original transaction, and the word or promise of the defendant was relied on, the statute'of frauds declares such promise void, and equity will not interfere. And in this doctrine I understand the Supreme Judicial Court of Massachusetts to concur. (Walker v. Locke, 5 Cush., 90.) The effect of the defeasance here set up, by parol evidence, is, that it defeats the absolute deed, and makes it void on payment of a sum of money. On general principles the rule is, that where there is a written contract, all antecedent propositions, negotiations, and parol interlocutions, on the same subject, are deemed to be merged in such contract. (1 Story Com., p. 173, sec. 160; 2 Story, p. 286, sec. 1,018.) There must be fraud or mistake in making the agreement, if it can be reformed. (Id., sec. 157, p. 169.) I think the parol proof was inadmissible both by the statute of frauds of Massachusetts, and according to the general rule referred to; and that the decree should be reversed, and the bill dismissed. Mr. Justice CAMPBELL dissenting. The defendant, in the year 1828, entered upon the land conveyed to him by Nehemiah Wyman, and retained it until 1844. He then sold it as his own property, and appropriated the price to his own use. During this whole period, there was no act on the part of Wyman from which the relation of a mortgagor or debtor can be inferred, and no account was rendered by the defendant, nor was any act performed by him inconsistent with his deed. The evidence relied on to engraft a trust on this deed consists of conversations reported by Nehemiah Wyman, the debtor, and his brother William, as contemporaneous with the deed, and other conversations reported by William Wyman as occurring in 1844 and 1851; and also the statements of the answer. No intercourse between Nehemiah Wyman and the defendant took place between 1828 and 1851, directly or mediately, relative to this subject. The witness, Nehemiah Wyman, is not, in my opinion, a competent witness. This suit is brought by his son upon an DECEMBER TERM, 1856. 303 Byers v. Surget. assignment made after the controversy had commenced, and with the acknowledged purpose of using his father as a witness. It was found that sufficient evidence did not exist to support the claim, and machinery was resorted to, calculated to introduce the evils of champerty and maintenance. The witness sold his claim, with a concession to the assignee to employ him as a witness to establish it. Such a practice holds out to parties a strong temptation to commit perjury. (Bell v. Smith, 5 B. and C., 188, J. Bayley’s Opinion; Maury v. Mason, 8 Part., 212; Clifton v. Sharpe, 15 Ala. R., 618; 1 Penn. R., 214; 12 Pet., 140.) The testimony of Edward Wyman is open to much observation ; and I feel entirely indisposed to rest a decree upon his evidence. Nor do I see intrinsic difficulties in the inconsistencies of the answer. I cannot shut my eyes to the fact that nothing has been done between these parties for above twenty-three years inconsistent with the relations of vendor and vendee, or consistent with the relations of a creditor and debtor, except the detention of the evidence of the original debt by the defendant, and the most important part of that evidence was cancelled in 1830 by him. I dissent from the opinion of the court in reference to the jurisdiction of the Circuit Court of the United States in Massachusetts. It is admitted that, in the courts of Massachusetts, this trust could not be incorporated into the deed. The statute of frauds prevents it. (Walker v. Locke, 5 Cush., 90.) This statute constitutes a rule of property for the State. In the present case, the subject of the suit is a contract made in Massachusetts, by citizens of that State, and affecting the title to real property there. In my opinion, the statute law of Massachusetts furnishes a rule of decision to the courts of the United States. William Byers, Appellant, v. Francis Surget. Where there was a judgment for costs against the plaintiff, in a suit where the de-en ant pleaded a discharge in bankruptcy, and the attorney for the defendant fnX An insurance company, which paid these losses, had a right to seek relief from the owners of the boat. This relief could be sought in equity, not only upon the general principles of equity jurisprudence, but also because, in this case, a number of shipments were joined * in the same bill, and thus a multiplicity of suits was avoided. This was an appeal from the Circuit Court of the United States for the district of Missouri, sitting in equity. DECEMBER TERM, 1856. 313 Garrison et al. v. Memphis Insurance Company. The bill was filed by the Memphis Insurance Company, a corporation created by the laws of Tennessee, and whose stockholders were citizens thereof, against the owners of the steamboat Convoy. In February, 1849, they received on board of their boat a large amount of cotton, to be carried from Memphis to New Orleans. The boat and cargo were destroyed by fire on the downward voyage, without any fault or negligence of the owners, their agents, or servants. The insurance company paid the owners of the cotton the amounts of their several insurances, and then filed this bill to recover such sums from the owners of the boat. The facts are more particularly stated in the opinion of the court. The Circuit Court held the owners of the boat liable, and rendered a decree against them for the amounts paid by the insurance company. There were fifteen different bills of lading mentioned in the bill. The first five, covering three hundred and eighty-eight bales of cotton, stipulated for the delivery at New Orleans, “the dangers of the river only excepted.” In the sixth, seventh, and eighth, covering one hundred and twenty-one bales, “the dangers of the river and unavoidable accidents only” are excepted. In the ninth, fourteenth, and fifteenth, covering two hundred and seventy-four bales, “the unavoidable dangers of the river and fire only” are excepted; and in the tenth, eleventh, twelfth, and thirteenth, “the dangers of the river and fire only” are excepted. The ground upon which the owners of the boat were claimed to be liable upon those bills of lading, where “fire” was excepted, was, that the fire arose from carelessness. But in the progress of the trial this branch of the claim was given up, and the claim of the plaintiffs was declared to rest upon the construction to be given to the bills of lading, in which the vessel was merely exempted from “the dangers of the river,” or “the dangers of the river and unavoidable accidents.” The Circuit Court decreed that the owners of the boat were liable upon those bills of lading which contained the exception only of “the dangers of the river,” being the first five mentioned in the bill, and dismissed the bill as to the relief sought in respect to the bills of lading in which “the dangers of the river and unavoidable accidents ” are excepted, being the sixth, seventh, and. eighth, mentioned in the bill. The owners of the boat appealed to this court. case was argued by Jfr. Ewing for the appellants, and Mr. Greyer for the appellees. Mr. Justice CAMPBELL delivered the opinion of the court. 314 SUPREME COURT. Garrison et al. v. Memphis Insurance Company. The appellee filed a bill in the Circuit Court against the appellants, the owners of' the steamboat Convoy, a vessel formerly employed in the navigation of the Mississippi river, and which, in 1849, was consumed by fire, with a cargo of cotton. The appellee is an insurance corporation of Memphis, Tennessee, and insured eleven hundred and fifty-two bales of the cotton belonging to this cargo from loss by fire; this insurance was effected upon fifteen distinct parcels, and shipped mostly from Teunessee to a number of consignees in New Orleans. The company adjusted the losses with the assured on their policies, and bring this suit for reimbursement, by enforcing the claims of the shippers against the owners. These answer the bill by a* denial of their legal responsibility for the loss. They maintain that fire is one of the perils of the river Mississippi ; that all the bills of lading that exempt the carrier from a loss by perils of the river, imply fire as one of those perils; that the variations in the bills of lading, some including “fire,” and “unavoidable accidents” as well as fire, are referable to the fact that they are preferred by different shippers, who have different forms for expressing the same legal consequence. That they all understand that a carrier is exempt from a liability for fire on a bill of lading exonerating him from the risks of the river. It was admitted on the hearing that the boat was consumed, without any negligence or fault of the owners, their agents, or servants. The Circuit Court excused the owners from losses, where the bills of lading contained an exception of fire or unavoidable accidents, but condemned them on the others, to satisfy the demand of the company. It cannot be denied that the appellants are responsible, according to the strictness of the common-law rule determining the carrier’s liability, unless an accidental fire is one of the exceptions included’ in the term “perils of the river.” These words include risks arising from natural accidents peculiar to the river, which do not happen by the intervention of man, nor are to be prevented by human prudence; and have been extended to comprehend losses arising from some irresistible force or overwhelming power which no ordinary skill could anticipate or evade. (Jones v. Pitcher, 3 8. and P., 136; 4 Yerg., 48; 5 Yerg., 82; Schooner Reeside, 2 Sum., 568.) They exonerate a carrier from a liability for a loss arising from an attack of pirates, or from a collision of ships, when there is no negligence or fault on the part of the master and crew. Latterly, the courts have shoytn an indisposition to extend the comprehension of these words. The destruction of a DECEMBER TERM, 1856. 815 Garrison et al. v. Memphis Insurance Company. vessel by worms at sea is not accounted a loss by the perils of the sea; nor was a damage from bilging, arising in consequence of the insufficiency of tackle for getting her from the dock; nor was damage occasioned to a vessel by her props being carried away by the tide Awhile she was undergoing repairs on the beach, excused, as falling within that exception. In Laveroni v. Drury, (8 Ex. R., 166,) a question arose whether a damage to a cargo of cheese, occasioned by rats, was within the exception of the dangers or accidents of the sea and navigation; and the Continental and American authorities were, cited to the Barons of the Exchequer, to show that it was, and that the carrier was excused, he having taken the usual and proper precautions against them. That court decided otherwise, and say “the exception includes only a danger or accident of the sea or navigation, properly so called, (viz: one caused by the violence of the winds and waves, a vis major, acting upon a seaworthy and substantial ship,) and does not cover damage by rats, which is a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse on land as in a ship at sea.” And the court conclude “that the liability of the master and owner of a general ship is prima fade that of a common carrier; but that his responsibility may be either enlarged or qualified by the terms of the bill of lading, if there be one; and that the question, whether the defendant is liable or not, is to be ascertained by this document when it exists.” The principle of these cases establishes a liability against a carrier for a loss by fire arising from other than a natural cause, whether occurring on a steamboat accidentally, or communicated from another vessel or from the shore; and the fact that fire produces the motive power of the boat does not affect the case., (New J. S. N. Co. v. Merchants’ Bank, 6 How., 344, 381; Hale v. N. J. S. N. Co., 15 Conn., 53D; Singleton v.. Hilliard, 1 Strab., 203; Gilmore v. Carman, 1 S. and N., 279.) In this suit,, a witness was introduced, who claims to have been long familiar with the usages of the navigation and the river insurance risks of the Mississippi, and competent to testify in reference to the perils of that river. He says, “those are, sinking, by coming in collision with rocks, snags, or other boatsi or vessels, and fire; that the most common form of bills K contains the exceptions, perils of the river and fire; but that in many instances the word fire is omitted, and he has t^ot known an instance where the want of that word has created a difficulty in adjusting a loss, or was considered to give a claim against a boat on account of a loss by fire.” The first inquiry 316 SUPREME COURT. Garrison et al. v. Memphis Insurance Company. is, whether this evidence is admissible. In mercantile contracts, evidence is admissible to prove that the words in which the particular contract is expressed, in the particular trade to which the contract refers, are used in a peculiar sense, and different from that which they ordinarily import, and to annex incidents to written contracts, in respect to which they are silent, but which both parties probably contemplated, because usual in such contracts. But although it is competent to explain what is ambiguous, and to introduce what is omitted, because sanctioned by usage, it is not competent to vary or contradict the terms of the contract. The exceptions in the bills of lading under consideration have been in use in policies of insurance and contracts of affreightment for a long period, and have acquired a distinct signification in the customs of merchants, and the opinions of professional men and courts. It would be surprising if any particular or artificial meaning was attached to them in the customs of the Mississippi river, contrary to, or distinguishable from, that which existed elsewhere in the community of shippers and merchants. In this case, the evidence fails to establish any peculiar sense of these' words, as appropriate to the locality where the parties to this contract reside and made their contract. The evidence rather serves to show that the witness did not recognise the liability of a carrier, as it exists in the common law, and was ready to acquit him of responsibility for losses to which he did not contribute, by the negligence or fault either of himself or his agents. In Turney v. Wilson, (7 Yerger, 340)—a case decided in the State from which the shipments described in the bill were chiefly made— evidence was offered to show there was an implied contract recognised in the usages of shippers and merchants, which had prevailed from the first settlement of the country, to exempt the carrier from losses, except those proceeding from negligence or dishonesty to explain or construe a bill of lading of the common form. The court decided, that the dangers of the river were such as could not have been prevented by .human skill and foresight, and were incident to river navigation. That all evidence was irrelevant that did not show that the loss was occasioned by the act of God, the enemies of the country, or dangers of the river; that the custom could not affect or in anywise alter the written contract of the parties, as contained in the bill of lading, as the language had a definite legal meaning which this custom could not change. A similar question arose in the case of the Schooner Reeside, (2 Sum., 568,) where Justice Story condemns, in pointed language, the habit of admitting loose and inconclusive usages and customs DECEMBER TERM, 1856. 817 Garrison et al. v, Memphis Insurance Company. “to outweigh, the well-known and well-settled principles of law.” And in Rogers v. Mechanics’ Insurance Co., (1 Story, 601,) he denies the authority of a usage of a particular port, in a particular trade, to limit or control or qualify the language of mercantile contracts, such as a policy of insurance. A usage such, as is pleaded in this suit, if existing, must be notorious and certain, and have been uniform in its application and long established in practice. It must have been exhibited in the transactions of the individuals and corporations concerned, in conducting the business of shipments, transportation, and insurance, through the Mississippi valley. If the evidence had established that policies of insurance there did not designate fire among the risks assumed; that the words “perils of the river” were used to include that risk, and losses by fire had been uniformly settled under that clause in the policy; that contracts of affreightment had been made and losses adjusted on the same conditions; that these usages had received the sanction of professional and judicial opinion in the States bordering that river—the cause of the appellants would have presented different considerations. The record contains nothing to exempt them from the legal rule of liability, as established by the common law. Seven of the bills of lading produced contain the exception, “perils of the river and fire; ” three others add to the perils of the river, “unavoidable accidents;” and in these cases the Circuit Court exonerated the appellants from responsibility. The appellants further contend that the insurance company is not subrogated to the claims of the shippers of the cotton, whose losses have been adjusted on their policies of insurance; or, if this is so, still their suit should have been at law, in the name of the assured—the remedy being adequate and complete. In Randell v. Cochran, (1 Vesey, sen., 98,) the chancellor replied to a similar objection, “that the plaintiff had the plainest equity that could be.” The person originally sustaining the loss was the owner; but, after satisfaction made to him, the insurer. And in White v. Dabinson, (14 Sim., 273,) an insurer enforced a lien on a judgment recovered by the assured for a loss, where the loss had been partially settled by him, on the policy. (Monticello v. Morrison, 17 How., 152.) These cases also show that an insurer may apply to equity whenever an impediment exists to the exercise of his legal remedy in the name of the assured. The bill discloses fifteen different contracts of affreightment, of a similar character, which have been adjusted by the appellees, and which form the subject of this suit. They have been joined in the same bill, and much incon 318 SUPREME COURT. Commercial Mutual Marine Insurance Co. v. Union Mutual Insurance Co. venience and vexation have been prevented. Without further inquiry, we think a sufficient ground for a resort to equity is disclosed. Decree affirmed. The Commercial Mutual Marine Insurance Company, Appellants, v. The Union Mutual Insurance Company of New York. Where application for reinsurance was made on Saturday, upon certain terms, which were declined, and other terms demanded, and on Monday these last-mentioned terms were accepted by the applicant, and assented to by the president, but the policy not made out, because Monday was a holyday, the agreement to issue the policy must be considered as legally binding. The law of Massachusetts is, that although insurance companies can make valid policies only when attested by the signatures of the president and secretary, yet they can make agreements to issue policies in a less formal mode. By the common law, a promise for a valuable 'consideration to make a policy is not required to be in writing, and there is no statute in Massachusetts which is inconsistent with this doctrine. Where the power of the president to make contracts for insurance is not denied in the answer, or made a point in issue in the court below, it is sufficient to bind the company if the other party shows that such had been the practice, and there* by an idea held out to the public that the president had such power. It is not essential to the existence of a binding contract to make insurance, that a premium note should have been actually signed and delivered. This was an appeal from the Circuit Court of the United States for the district of Massachusetts, sitting in equity. The facts are stated in the opinion of the court. The case was argued by Jfr. Curtis for the appellants, and Mr. Goodrich for the appellees. Mr. Justice CURTIS delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the district of Massachusetts, in a suit in equity, to compel the specific performance of a contract to make reinsurance on the ship Great Republic. The Circuit Court made a decree in favor of the complainants, and the respondents appealed. It appears that the complainants, a corporation established in New York, having made insurance of the ship Great Republic to a large amount, authorized Charles W. Storey, at Boston, to apply for and obtain from either of the insurance companies there reinsurance to the extent of ten thousand dollars. Pursuant to this authority, on the 24th December, 1853, Mr. Storey made application to the president of the defendant DECEMBER TERM, 1856. 319 Commercial Mutual Marine Insurance Co, v. Union Mutual Insurance Co. corporation for reinsurance, at the same time presenting a paper, partly written and partly printed, as embodying the terms of the application. The paper was as follows:, “Reinsurance is wanted by the Union Mutual Insurance Company, New York, for $10,000, on the ship Great Republic, from December 24, 1853, at noon, for six months ensuing. “This policy is to be subject »to such risks, valuations, and condition, including risk of premium note, as are or may be taken by the said Union Mutual Insurance Company, and payment of loss to be made at the same time. 3 per cent. “Binding, --------- ------, President. “New York, December 24, 1853.” The president, after consultation with one of the directors of the company, declined to take the risk for a premium of three per cent., but'offered to take it for three and a half per cent. Mr. Storey replied, that was more than he was authorized to give, and left the office. He immediately apprised his principals, by a telegraphic despatch, that the risk could be taken for three and a half per cent, for six months, or six per cent, a year. The reply, on the same day, was, “Do it for six months, privilege of cancelling if sold.” This reply did not come to the hands of Mr. Storey until Monday, the 26th day of December, when he went to the office of the respondents, and found there the president of the company, but not any other person, as the day was generally observed, by merchants, bankers, and insurers, as a holy day, Christmas having fallen on Sunday. Mr. Storey informed the president he was willing to pay three and a half per cent, for the reinsurance described in the proposal, took a pen and altered the three per cent, to three and a half per cent., by adding J to 3 on the paper, and it is admitted by the answer that the president thereupon assented to the terms. contained in the paper, but informed Mr. Storey that no business was done at the office on that day, and that the next day he would attend to it. The president then took the paper and retained it. To a special interrogatory contained in the bill, the defendants answer: . “That its president did assent to the terms and provisions in said paper, as the terms and provisions of a reinsurance to oe completed and. executed by this defendant, by the making ana execution of a policy in due form, according to the requi-? f0Dj 01 laws Massachusetts, and the by-laws of this e endant, but they were not assented to as a present insu- 320 SUPREME COURT. Commercial Mutual Marine Insurance, Co. v. Union Mutual Insurance Co. Upon these facts, we are of opinion there was an agreement to reinsure according to the terms contained in the proposal, concluded by and between Mr. Storey and the president at this interview on Monday the 26th of December. The paper contained every particular essential to a contract to make reinsurance. It ascertained the subject of insurance, the commencement and duration of the risk, the parties, the interest of the assured, and the premium; and for the special risks, the valuations, and conditions, it referred to the original contract of insurance made by the complainants, by reason of which they were seeking reinsurance. On Saturday, the president had offered to contract in accordance with the paper, saving a difference of one-half per cent, on the premium. It was argued that it could not be considered an acceptance, on Monday, of a continuing offer made on Saturday, because, when the complainants authorized Mr. Storey to give three and a half per cent., they at the same time imposed a new condition by the words, “privilege of cancelling if sold.” But Mr. Storey testifies, and this is not denied by the answer, or by any witness, that when he made the application on Saturday, and before the president had named the premium which he was willing to take, the president said he supposed that they would have to cancel the policy, if the vessel should be sold within the time; and that he (Storey) assented thereto; and that at the interview on Monday, when this point was referred to, the president said the usage in Boston would settle it, and he would not put anything concerning it into the policy; and after some conversation concerning the usage, Mr. Storey agreed to take the policy without any mention of the privilege of cancellation. Under these circumstances, we do not perceive that the requirement of this privilege can be considered as at all varying, in the apprehension and meaning of the parties, the terms of the acceptance on Monday, from the terms of the proposal on Saturday. But whether, under all the circumstances, this should be deemed to have been a continuing offer, we do not think it necessary to determine; because, on Monday, either the president’s offer of Saturday was accepted by Mr. Storey, and its acceptance made known to the presi; dent, or the proposal was renewed by Mr. Storey, and accepted by the president. The fact that others chose to abstain from business on that day did not prevent these parties from contracting, if they saw fit to do so; and when one of them either accepted a continuing offer, or renewed a proposal wine was accepted by the other, they made a binding contract. JN or do we think the allegation of the answer, that the president in DECEMBER TERM, 1856. 321 Commercial Mutual Marine Insurance Co. v. Union Mutual Insurance Co. formed Mr. Storey that no business was, done in the office that day, but the next day he would attend to it, can reasonably be interpreted to mean that he had not made, or intended to make, a contract for a policy. Their fair meaning is, that though he had agreed to make the insurance, as the secretary and clerks were not there, and the books not accessible, any action on the agreement musttbe deferred to the next day. The words cannot be understood to mean, that he would on the next day attend to what he had already done; and he had already made a contract for reinsurance, to be executed on the next day, by issuing a policy in due form to carry that agreement into effect. On leaving the office of the defendants, Mr. Storey immediately informed the plaintiffs that he had effected this contract, and on the night of the same day the ship Great Republic was destroyed by fire, while lying at a wharf in the city of New York. On the twenty-seventh of December, the complainants tendered their note for the agreed premium, and demanded the policy of reinsurance. The defendants declined to make the policy. Several grounds have been insisted on in support of this refusal: The first is, that by force of a statute of the State of Massachusetts, (Rev. Stats., ch. 37, secs. 12, 13,) insurance corporar tions can make valid policies of insurance only by having them signed by the president and countersigned by the secretary.. But we are of opinion that this statute only directs the formal mode of signing policies, and has no application to agreement® to make insurance. Such we understand to be the view taken of this statute by the Supreme Court of Massachusetts. (New England Ins. Co. v. De Wolf, 8 Pick., 63; [Stat. 1817, ch. 120, sec. 1;] McCul-lock v. The Eagle Ins. Co., 1 Pick., 278; Thayer v. The Med., Mu. Ins. Co., 10 Pick., 326. See also Trustees v. Brooklyn Fire Ins. Co., 18 Barbour, 69; and Carpenter v. The Mu. Safety Ins. Co., 4 Sand. Ch. R., 408.) It is further insisted, that by the law merchant insurance can be effected only by a contract in writing. We do not doubt that the commercial law of all countries has treated of insurance as made in writing by an instrument, denominated by us a policy; and there' may be provisions of positive law, in some countries, requiring an agreement to make a policy to be lr[ writing. ®Qt there is no such statute of frauds in the State of Massachusetts. The common law must therefore determine the question; and under that law, a promise for a valuable consideration to make a policy of insurance is no more required to be in writing vol. xix. 21 322 SUPREME COURT. Commercial Mutual Marine Insurance Co. v. Union Mutual Insurance Co. than a promise to execute and deliver a bond, or a bill of exchange, or a negotiable note. So it has been held by other courts, and, we think, on sound principles. (18 Barbour, 69; Hamilton v. The Lycoming Company, 5 Barr., 339. See also Sanford v. The Trust Fire Ins. Co., 11 Paige, 547.) The respondents’ counsel has argued that their president had not authority to enter into an oral contract binding the company to make insurance. They admit it has been usual for the president to make such contracts; but they say that when he has done so, the policy was not issued until the next day, and no risk is understood to have commenced under such an undertaking until the policy issues. Whether a risk be commenced when the contract for insurance is made, or only when the policy issues, must depend on the terms of the contract. Where, as in the present case, there is an express contract to take the risk from a past day, there is no room for any understanding that it is not to commence until a future day. Such an understanding would be directly repugnant to the express terms of the contract. And if the defendants have held out their president as authorized to make oral contracts for insurance, no secret limitation of this authority would affect third -persons, dealing with him in good faith and without notice of -such limitation. Besides, the supposed limitation would be inconsistent with the authority itself. It is, in effect, that •though the president is authorized to make oral promises to effect insurance, the company are at liberty to execute those promises, or to refuse to do so, at their option. The power of the president to enter into this contract to make insurance is nowhere denied in the answer. All that can bear on this subject occurs in certain statements concerning the usual course of business of the company. It seems to have been assumed by both parties, that whatever the president actually did in this transaction, he did for the company, and so as to render them responsible for his acts. And no . question was raised on this point in the court below. Still it is incumbent on the complainants to offer competent and sufficient evidence of the authority of the president to bind the company, though less evidence may be reasonably sufficient when no issue concerning it is made on the record. • We think such evidence is in the case. Mr. Storey deposes, that during the three years next preceding this transaction, he had effected upwards of three hundred contracts for>reinsurance, with the presidents of ten different insurance companies of Boston; and that one, or possibly two, of these presidents usually signed an accepted application—the others, all contracted orally. Considering that all the incorporated insurance DECEMBER TERM, 1856. 323 Field v. Seabury et al. companies in Boston have similar charters, and the same kind of officers to conduct their business, we think this is competent evidence, that presidents of such insurance companies in that city are generally held out to the public as having th e authority to act in this manner. And upon a point not put in issue in the record, and on which no more than formal proof ought to be demanded, we hold this evidence sufficient. (Eleckner v. The Bank of the United States, 3. Whea., 360; Minor v. The Mechanics’ Bank of Alexandria, 1 Peters, 46.) The fair inference is, that if the general authority of the president to contractor the corporation had been put in issue, it could have been shown, by the most plenary proof, that the presidents of insurance companies in the city of Boston are generally held out to the public by those companies as their agents, empowered to receive and assent, either orally or in, writing, to proposals for insurance, and to bind their principals by such assent. Nor do we. deem it essential to the existence of a binding contract to make insurance, that a premium note should have been actually signed and delivered. The promise of the plaintiffs to give a note for the premium was a sufficient consideration for the promise to make a policy. It is admitted, that the usage is to deliver the note when the policy is handed to the assured. If the defendants had tendered the policy, we have no doubt an action for not delivering the premium note would have at once lain against the plaintiffs; and we think there was a mutual right on their part, after a tender of the note, to maintain an action for non-delivery of the policy. In Tayloe v. The Mutual Fire Ins. Co., (9 How., 390,) it was held that a bill in equity for the specific performance of a contract for a policy could be maintained. And it being admitted that in this case the defendants would be liable as for a total loss on the policy, if issued in conformity with the contract, no further question remained to be tried, and it was proper to decree the payment of the money, which would have been payable on the policy, if it had been issued. The decree of the Circuit Court is affirmed. Edward Field, Plaintiff in Error, v. Pardon G-. Seabury et AL. When a grant or patent for land, or legislative confirmation of titles to land, has been given by the sovereignty or legislative authority only having the right to make it, without any provision having been made, in the patent or by the law, 824 SUPREME COURT. Field v. Seabury et al. to inquire into its fairness between the grantor and grantee, or between third parties and the grantee, a third party cannot raise, in ejectment, the question of fraud as between the grantor and grantee. A bill in equity lies to set aside letters patent obtained by fraud, but only between the sovereignty making the grant and the grantee. Such a patent or grant cannot be collaterally avoided at law for fraud. The act of March 26, 1851, (California Laws, 164,) makes a grant of all lands of the kind within the limits mentioned in it which had been sold or granted by any alcalde of the city of San Francisco, and confirmed by the ayuntamiento or town or city council thereof, and also registered or recorded in some book of record which was at the date of the act in the office or custody or control of the recorder of the county of San Francisco, on or before the third day Of April, one thousand eight hundred and fifty. The registry of an alcalde grant, in the manner and within the time mentioned in the act, is essential to its confirmation under the act. In that particular, the grant under which the plaintiff in this suit claimed, is deficient. The defendants brought themselves by their documentary evidence within the confirming act of March 26, 1852. This case was brought up, by writ of error, from the Circuit Court of the United States for the district of California. The case is fully stated in the opinion of the court. It was argued at December term, 1855, by Mr. Lockwood for the plaintiff in error, and Mr. Holladay for the defendants, and held under a curia advisare vult until the present term. Mr. Justice WAYNE delivered the opinion of the court. This case has been brought to this court by writ of error from the Circuit Court of the United States for the district of California. The circumstances disclosed by the record, and the documentary evidence introduced by the parties in support of their respective rights to the land in controversy, make an extended statement necessary, in order that the points decided may be understood. The defendant in drror brought into the Circuit Court an action of ejectment against Wyman and others, tenants of the plaintiff in error, to recover the possession of lot No. 464, it being a subdivision of a lot of one hundred varas square, numbered 456, of the San Francisco beach and water lots. Field, the plaintiff in error, was admitted to defend, and a verdict having been given for the plaintiffs below, it was agreed by a stipulation in the record that this writ of error should be prosecuted by Field alone, without joining the other defendants. Both parties claimed title under an act of the Legislature of California, passed the 26th March, 1851, entitled “An act to provide for the disposition of certain property of the State of California,” the provisions of which, so far as they relate to this cause, are as follows: DECEMBER TERM, 1856. 325 Field v. Seabury el al. The first section of the act describes the land to be disposed of; and the second section is, that “the use and occupation of all the land described in the first section of the act is hereby granted to the city of San Francisco for the term of ninety-nine years from the date of this act, except as hereinafter provided ; all the lands mentioned in the first section of this act,, which have been sold by authority of the ayuntamiento, or town or city council, or by any alcalde of the said town or city, at public auction, in accordance with the terms of the grant known as Kearney’s grant to the city of San Francisco, or which have been sold or granted by any alcalde of the said city of San Francisco, and confirmed by the ayuntamiento, or town or city council thereof; and also registered or recorded in some book of record now in the office or custody or control of the recorder of the county of San Francisco, on or before the third day of April, A. D. one thousand eight hundred and fifty, shall be and the same are hereby granted and confirmed to the purchaser or purchasers or grantees aforesaid, by the State relinquishing the use and occupation of the same and her interests therein to the said purchasers or grantees, and each of them, their heirs and assigns, or any person or persons holding under them, for the term of ninety-nine years from and after the passage of this act.” Sec. 3. “ That the original deed, or other written or printed instrument of conveyance, by which any of the lands mentioned in the first section of this act were conveyed or granted by such common council, ayuntamiento, or alcalde, and in case of its loss, or not being within the control of the party, then a record copy thereof, or a record copy of the material portion thereof, properly authenticated, may be read in evidence in any court of justice in this State, upon the trial of any cause in which the contents may be important to be proved, and shall be prima facie evidence of title and possession, to enable the plaintiff to recover the possession of the land so granted.” Kearney’s grant mentioned in the act was read in evidence at the trial by the plaintiffs in the action; it is dated March 10th, 1847, and is as follows: ^Brigadier General S. W. Kearney, Governor of California, by virtue of authority in me vested by the President of the United States of America, do hereby grant, convey, and release, unto the town of San Francisco, the people or corporate authorities thereof, all the right, title, and interest thereof, 77®.^’ov®niP[lent of the United States, and of the Territory oi California, in and to the beach and water lots on the east iront of said town of San Francisco, including between the points known as the Rincon and Fort Montgomery, excepting such lots as may be selected for the use of the General Gov 326 SUPREME COURT. Field v. Seabury et al. ernment by the senior officers of the army and navy now there, provided the said ground hereby ceded shall be divided into lots, and sold by public auction to the highest bidders, after three months’ notice previously given. The proceeds of said sale to be for the benefit of the town of San Francisco.” It was agreed by the parties at the .trial that the lot sued for is included in the first section of the act of March 26, 1851, already cited, and also within the locality of the Kearney grant; that it is no part of any Government reservation; and that on the 9th of September, 1850, whefi California was admitted as a State into the Union, the lot was below high-water mark. In order to show themselves entitled to the lot in question under the second section of the act cited, the plaintiffs below produced the following documents: 1. A grant by John w. Geary, first alcalde of San Francisco, to Thomas Sprague, dated January 3d, 1850, reciting the Kearney grant, calling it a “decree,” and that by virtue thereof, and by direction of the ayuntamiento, a certain portion of said ground, duly divided into lots as aforesaid, after notice, as required by the “decree” or grant, had been exposed to sale at public auction, in conformity with it, on the 3d day of January, 1850; and that one of the lots, numbered on the map 464, had been sold to Thomas Sprague for $1,700, for which he had paid in cash $425, and had obliged himself to pay the sum of $1,275 in three equal instalments, on the 3d of April, 3d of July, and the 3d of October; that Sprague then received a grant for the lot to him, his heirs and assigns, forever, of all the estate that the town of San Francisco had in the same, as fully as the same was held and possessed by it, subject to a proviso that the grant was to be void for failure to pay the instalments. The foregoing document or grant was not recorded or registered, nor was any evidence given that three months’ notice of the sale had been given, other than the recitals in the grant. 2. The plaintiff introduced a deed from Sprague to Seabury, Gifford, and one Horace Gushee, dated May 17, 1850, conveying to them in fee all his right and title to the lot sued for, and also another lot, Ko. 450, for the sum of $4,000, with a provision that they should pay $1,560 of the instalments payable to the town. The plaintiffs then introduced a deed from Horace Gushee to the plaintiff Parker, conveying to Parker in fee all his right and title to the water lot Ko. 464, for the consideration of $100, which was dated April 20th, 1855. Receipts by the city officers for three of the instalments of DECEMBER TERM, 1856. 327 Field v. Seabury et al. the purchase-money, dated the 3d April, 3d July, and 3d October, were endorsed upon the grant. The plaintiffs then rested their case upon the foregoing evidence. Two grounds of defence were relied upon by the defendants: Eirst, that the G-eary grant was not within the act of March 26, 1851, for want of the notice of sale required by the Kearney grant; and also that it had never been registered and recorded, as the act required, in some book of record now in the office now in the custody or control of the recorder of the county of San Francisco, on or before the third day of April, one thousand eight hundred and fifty. Second, that the defendants and those under whom they claimed had a good title to the premises under the provisions of the act of March 26, 1851. They also relied upon a possession of the premises for more than five years prior to the institution of the suit. To prove their title, the defendants gave in evidence the following documents : 1st. A grant of the lot one hundred varas square, (of which the lot in question was a subdivision,) dated September 25th, 1848, by Leavenworth, alcalde of San Francisco, to Parker, upon the petition of the latter, both written on the' same sheet, as follows: “To T. N. Leavenworth, Alcalde and Chief Magistrate, district San Francisco: “Your petitioner, the undersigned, a citizen of California, respectfully prays the grant of a title to a certain lot of land in the vicinity of the town of San Francisco, containing one hundred varas square, and bounded on the north by Washington street, on the west by a street dividing said lot from the beach and water survey, on the south by Clay street, and on the east by unsurveyed land, and numbered on the plan marked on page one (1) of district records as four hundred and fifty-six (456.) William C. Parker.” On the same day the grant was made,' as follows: “Territory of California, “District of San Francisco, Sept. 25, A. D. 1848. “Know all men by these presents, that William C. Parker has presented the foregoing petition for a grant of land in the vicinity of the town of San Francisco, as therein described; therefore I, the undersigned, alcalde and magistrate of the district of San Francisco, in lipper California, do hereby give, and grant, and convey, unto the said William C. Parker, his 328 SUPREME COURT. Field v. Seabury et al. heirs and assigns, forever, the lot of ground as set forth in the petition, by a good and sufficient title, in consonance with the established customs and regulations, being one hundred varas square, lying and being situated in the eastern vicinity of San Francisco, and outside the limits of the water-lot survey. “In testimony whereof, I have hereunto set my hand, as alcalde and chief magistrate of the district aforesaid. “Done at San Francisco, the day and year above written. “T. M. Leavenworth. “Recorded in the alcalde’s office, in book F of land titles, on page number 18, at 10J o’clock, A. M., November 28,1849. “ Office First Alcalde. A. Bowman, JEteg. Then the defendants called Parker as a witness, to prove the execution of the grant in the manner and at the time as has been just stated, producing at the same time a deed from Parker to Leavenworth, dated the 26th September, 1848, and Parker certified it had been executed by him. It was also proved that Leavenworth conveyed the premises to George W. Wright, by deed dated the 1st December, 1849. Wright conveyed one undivided half of the lot in fee to Charles T. Botts, and the other undivided half of the same to Edward Field, the now plaintiff in error, except two lots or subdivisions of the same, numbered 467 and 468. A deed from Botts, dated 1st October, 1852, to Joseph C. Palmer and Wright, conveying to them in fee the one undivided half of said lot, except the subdivisions of it 467 and 468, for the consideration of $40,000, reciting the premises conveyed to be ten water lots, and that Botts derived title through the deed from Wright to him; and Palmer then conveyed the last-mentioned premises as they held them to Field, the plaintiff in error, for $75,000, without any recital of the preceding conveyances, and the same was recorded on the 12th January, 1853, the day of the execution of the deed. It is as well to remark, that all of the deeds just mentioned were in the county recorder’s office. It was also agreed by the parties, in writing, that the original defendants in the action were in possession of the premises under leases from Field, the plaintiff in error, the production of the leases being dispensed with. The defendants also gave in evidence book B of the district records, page 1, kept in the alcalde’s office, and as such turned over to the recorder of the county of San Francisco, upon the organization ot that office in May, 1850, to prove from it that there had bedn a certificate of the Leavenworth conveyance of the land to Parker, contemporary with the execution of it. DECEMBER TERM, 1856. 329 Field v. Seabury et al. The authenticity of the book B was proved by the testimony of witnesses who had been connected with the office of the alcalde, and afterwards with the office of the recorder of the county. Other testimony was also introduced by the defendants, of another book, F, kept by Alcalde Geary, the predecessor of Leavenworth, in which grants issued by his predecessor were recorded at length, which was turned over to the county recorder at the same time with book B, in which there was a literal transcript of Parker’s original petition and Leavenworth’s grant, as they have been already recited. The defendants also gave in evidence a resolution of the ayuntamiento or town council of San Francisco, of the 11th October, 1848, confirming the grants of Leavenworth to several parcels of land adjacent to the town, on the ground that Leavenworth had made them for the purpose of raising funds to defray the necessary expenses of the town and district. A deed from the board of California land commissioners, acting under the act of May 18, 1853, by which they were authorized, to sell the interest of the State in the San Francisco beach and water-lot property, was also put in evidence by the defendants, which conveyed in fee to Joseph Palmer and Edward C. Jones all the right, title, and interest, of the State of California in the aforesaid ten water lots, for the consideration of $1,425. It was also proved that Palmer, Cook, & Co., of which Palmer, Wright, and Jones, were members, commenced improving the lot in May, 1850, more than five years before the commencement of the suit, which was on the 7th June, 1855, and that they shortly afterwards leased it to one Gordon, who erected on it valuable improvements; and that they, and others claiming under them, had ever since occupied the premises. A resolution of the town council, passed on the 5th October, 1849, requesting the alcalde to advertise the sale at the earliest moment, was .also put in proof by the defendants, to show that the Geary grant of January 7, 1850, had been made without three months’ notice of the sale having been given. Then, at this stage of the trial, the plaintiffs were permitted to discredit the fact that Leavenworth’s grant to Parker had been recorded, as has been stated, by showing that there had been mistakes in recording, grants in the book of records, and that there were several entries in the book purporting to be copies of grants y Leavenworth in 1849, after he was out of office, which the court permitted to be done—the defendants objecting—on the ground that, by reading from the book the grant to Parker, e deiendants had made the entire book evidence; and that e plaintiffs might read other entries in it, without any proof that the grants had been issued, or in fact dated, in the year 1849. The 330 SUPREME COURT. Field v. Seabury et al. court also permitted Parker, the original grantee of Leavenworth, to be examined as a witness; and also Clark, a member of the town council, to prove that there had been fraud in the issue and confirmation of the Leavenworth grant. And upon the defendants objecting to the admissibility of such evidence, the court overruled their objection, saying “that the act of March 26, 1851, under which the plaintiffs and. defendants claimed to have a title to the premises in dispute, was intended to confirm only honest titles, and that the plaintiff' might impeach the Leavenworth grant to Parker, and the confirmation of it by the town council, by showing fraud.” And under this ruling of the court, the plaintiffs were permitted to read as evidence from the books of records B and F, and from other books purporting to be minutes of grants made by Leavenworth to one Clark, to Jones and Buchelin, prior to October 11, 1848, intending to show by them that the members of the council who voted for the resolution of that date held divers grants which were confirmed by it, and had therefore acted fraudulently. And that was done without any proof of identity between the supposed grantees and other members of council, and without producing any originals of the supposed grants, or proving that any such grants were made. The witnesses, however, introduced to prove fraud in the issue of the Leavenworth grant, denied positively that it existed. We do not think a more extended statement from the record necessary for the conclusion at which we have arrived in this case. That which has been given is sufficient for the construction of the act of March 26, 1851, under which both parties claim the premises in dispute, and for the decision of the exception taken by the defendants to the ruling of the court in respect to the admissibility of witnesses to prove that Leavenworth had practised a fraud in issuing a grant to Parker for the lot 456. It is admitted, that neither the plain tiff nor defendant could claim a title to any part of that lot under these alcalde grants, unless they can be brought within the act of March 26, 1851. (Laws of California, 764.) The court below said, in its charge to the jury, that neither of the alcaldes had any power to grant land, and that no estate passed by 'either of their grants. These documents are only to be considered as ear-marks to designate the legislative grantees, who were intended to take under the act of March 26, 1851. Both parties in the suit bringing themselves within the classes designated, the defendants, being in possession, as has been ascertained by the evidence, would on principles of law be entitled to a verdict. In this the court was correct; and its first obligation, when the case was sub DECEMBER TERM, 1856. 331 Field n. Seabury et al. mitted to the jury, was to determine, by its construction of the act, whether both parties or either of them had, by their documentary evidence, been brought within the classes of grantees designated by the act. This, however, it did not do; but leaving that question undecided, after permitting the plaintiffs to introduce witnesses to prove that the Leavenworth grant had been fraudulently issued by him, it submitted the case to the jury, making it not only competent to find the fact of fraud, but constituting the jurors judges of the legal question, whether the plaintiff who had alleged the fraud was within the classes of grantees which the Legislature meant to confirm, and that the defendant’s alcalde grant was not comprehended by the legislative act—thus giving to a party who might not be able to claim a title under the act a chance, by the verdict of a jury, to dispossess another, also without a title under it, who. had just been said by the court, in a controversy between them for the land, would be entitled to a verdict in virtue of his being in possession of it. If the plaintiff had no title under the act, though the defendant also was without one, the former could have no complaint against him, nor any legal right to recover in ejectment land of which the defendant was in possession.. The court, in this part of its ruling, made the charge of fraud the turning-point in the case, and not the right of title to the premises, by the construction of the act under which both parties claimed a title, and by which it had said either could only claim. The result was, the jury, having been so instructed, found a verdict for the plaintiff upon the question of fraud, without any instruction in any part of its charge that he claimed a title from an alcalde’# grant, which was within the act of March 26, 1851, or that the defendant was without one, unless it .be the court’s intimation to the jury that the defendant might be considered as having no title under the act, if they should find that there had been fraud in the issue of his alcalde grant, or in the confirmation of it. The court’s construction of the rights of the parties under the act should have been independent of the question of fraud. The evidence which it allowed to be given of it was" inadmissible, and the finding of the jury is. of no weight in the case. Fraud, as it is sometimes said, “vitiates every act”—correctly, too, when properly applied to the subject-matter in controversy, and to the parties in it, and in a proper forum. For instance, as when one ot them charges the other with an actual fraud; or when °ne-k+ + T11’ omission to do an act in time, which he ought to have done, as in not having recorded a deed, the r W1“10^ any knowledge of its existence, becomes in good laitn a purchaser of the same property; in such a case a claim, 332 SUPREME COURT. Field v. Seabury et al. under the unregistered deed, is said to be fraudulent and void against a subsequent bona fide purchaser without notice. But in that case, the latter gains a legal preference by the court’s construction of the registry act, under which the first deed ought to have been recorded, and, as a matter of law, so instructs the jury. But these cases are not applicable to the case in hand. Those are cases where the actual or constructive fraud grows out of the conduct of parties directly to each Other, or is consequential from such conduct. This case involves directly the point whether, when a grant or patent for land, or legislative confirmation of titles to land, has been given by the sovereignty or legislative authority only having the right to make it, without any provision having been made in the patent or by the law to inquire into its fairness as between the grantor and grantee, or between third parties, a third party cannot raise in ejectment the question of fraud as between the grantor and grantee, and thus look beyond the patent or grant. We are not aware that such a proceeding is permitted in any of the courts of law. In England, a bill in equity lies to set aside letters patent obtained from the King by fraud, (Att. Gen. v. Vernon, 277, 370; the same case, 2 Ch. Rep., 353,) and it would in the United 'States; but it is a question exclusively between the sovereignty making the grant and the grantee. But in neither could a patent be collaterally avoided at law for fraud. This court has never declared it could be done. Stoddard and Chambers (2 How., 284) does not do so, as has been supposed. In that case, an act of Congress confirming titles, excepted cases where* the land had previously been located by any other person than the confirmee, under any law pf the United States, or had been surveyed and sold by the United States; and this court held that a location made on land reserved from sale by an act of Congress, or a patent obtained for land so reserved, was not within the exception, and the title of the confirmee was made perfect by the act of confirmation, and without any patent, as against the prior pa$ent, which was simply void; and this valid legal title enured at once to the benefit of an assignee of the confirmee. In this connection it must be remembered that we are speaking of patents for land, and not of transactions between individuals, in which it has been incidentally said, by this court, that deeds fraudulently obtained may be collaterally avoided at law. (Gregg v. Sayre, 8 Peters, 244; Swayzer v. Burke, 12 Peters, 11.) But we are also of the opinion that the act of March 26, 1851, to provide for the disposition of certain property of the DECEMBER TERM, 1856. 383 Field v. Seabury et al. State of California, (Cal. Laws, 764,) makes a direct grant of all lands of the kind, and within the limits mentioned in the act, which had been sold or granted by any alcalde of the city of San Erancisco, and confirmed by the ayuntamiento, or town or city council thereof, and also registered or recorded in some book of record which was at the date of the act in the office or custody or control of the recorder of the county of San Francisco, on or before the third day of April, one thousand eight hundred and fifty. The words of the statute are, “that all the lands mentioned in the first section of it are hereby granted and confirmed to the purchaser or purchasers, or grantees aforesaid, by the State relinquishing the use and occupation of the same, and her interests therein, to the said purchasers or grantees, and each of them, their heirs and assigns, or any person or persons holding under them, for the term of ninety-nine years from and after the passage of the act.” This language cannot be misinterpreted. The intention of the Legislature is without doubt; and we cannot make it otherwise by supposing any condition than those expressed in the act; and we also think that the registry of an alcalde’s grant, in the manner and within the time mentioned in the act, is essential to its confirmation under the act. In this particular, the Kearney grant, under which the plaintiff claimed, was deficient, and so the court should have instructed the jury upon the prayer of the defendant, without the qualification that the entry made of it in the district records was a registry within the meaning of the act. We do not deem it necessary to say more in this case, than that, in our view, the defendants have brought themselves, by their documentary evidence, completely within the confirming act. of the 26th March, 1850, and that the court should have so instructed the jury, as it was asked to do by their counsel. The judgment of the court below is reversed. Edward Field, Plaintiff in Error, v. Pardon G. Seabury et AL. The decision in the preceding case of Field v. Seabury, again affirmed. This, like the preceding case, was brought up, by writ of error, from the Circuit Court of the United States for the district of California. It was argued in connection with the preceding case. Mr. Justice WAYNE delivered the opinion of the court. 334 SUPREME COUfeT. Bryan et al. v. Forsyth. This case was like the preceding, and they were argued together. For the reasons given in the first of them, the court directs the reversal of the judgment in the court below, in this case. William F. Bryan and Rudolphus Rouse, Plaintiffs in Error, v. Robert Forsyth. By the acts of Congress passed on the 15th of May, 1820, and March 3d, 1823, provision was made, that each of the settlers in Peoria, Illinois, should be entitled to a village lot, and the surveyor of public lands was directed to designate upon a plat the lot confirmed to each claimant. The act of 1823 conferred on the grantee an incipient title; and when the survey was made and approved, by which the limits of the lot were designated, the title then became capable of sustaining an action of ejectment, even before a patent was issued. Tn the interval between 1823 and the survey, a patent was taken out, which was issued subject to all the rights of persons claiming under the act of 1823. This patent was controlled by the subsequent survey. But although it was controlled by the subsequent survey, yet the patent was a feesimple title upon its face, and sufficient to sustain a plea of the statute of limitations in Illinois, which requires that possession should be by actual residence on the land, under a connected title in law or equity, deducible of record from the United States, &c. The American State Papers, published by order of Congress, may be read in evidence, in the investigation of claims to land. This case was brought up, by writ of error, from the Circuit Court of the United States for the northern district of Illinois. The facts of the case are stated in the opinion of the court. It was argued by Jfr. Ballance and Mr. Johnson for the plaintiffs in error, and submitted on -a printed argument, by Mr. Williams for the defendant. Mr. Justice CATRON delivered the opinion of the court. Forsyth sued Bryan and Rouse in ejectment for part of lot No. 7, in the town of Peoria,'in the State of Illinois. The action was founded on a patent to Forsyth, from the United States, dated the 16th day of December, 1845, which patent was given in evidence on the trial in the Crcuit Court. It was admitted that the defendants were in possession when they were sued, and that they held possession within the bounds of the patent. To overcome this prima facie title, the defendants gave in evidence a patent from the. United States to John L. Bogardus, containing twenty-three acres, dated January 5th, 1838, which included lot No. 7. To overreach this elder patent, the plaintiff relied on an act of Congress, passed May 15, DECEMBER TERM, 1856. 385 Bryan et al. v. Forsyth. 1820, for the relief of the inhabitants of the village of Peoria, providing that every person who claims a lot in said village shall, on or before the first day of October next, deliver to the register of the land office for the district of Edwardsville a notice in writing of his or her claim; and it was made the duty of the register to make a report to the Secretary of the Treasury of all claims filed, with the substance of the evidence in support thereof, and also his opinion, and such remarks respecting the claims as he might think proper to make; which report, together with a list of the claims which, in the opinion of the register, ought to be confirmed, shall be laid by the Secretary before Congress, for their determination. The report was made, and laid before Congress, in January, 1821. As respected lot No. 7, (a part of which is in dispute,) the register reported that Thomas Forsyth claimed it; that it was three hundred feet square, French measure, situate in the village of Peoria, and bounded eastwardly by a street, separating it from the Illinois river; northwardly by a cross street, westwardly by a back street, and southwardly by a lot claimed by Jacques Mette. The remark of the register is: “A part of this lot must have been embraced by the lot claimed by Augustine Rogue.” . Rogue’s claim (No. 2) was for a lot of about an arpent, and bounded, says the register, northwardly by a lot occupied by Maillette, eastwardly by a road separating it from Illinois river, and southwardly and westwardly by the prairie. The register reported on seventy lots in all. A survey to designate boundaries among the claimants was indispensable, as they were in considerable confusion. Congress again legislated on the subject, by act of March 3, 1823, and provided that each of the settlers, whose names were contained in the report, who had settled a village lot prior to the first of January, 1813, should be entitled thereto; the lot so settled on and improved, not to exceed two acres; and where it exceeded two acres, such claimant should be confirmed in a quantity not exceeding ten acres. It was made the duty of the surveyor of public lands for the district, to cause a survey to be made of the several lots, and to designate on a plat thereof the lot confirmed and set apart to each claimant, and forward the same to the Secretary of the Treasury, who shall (says the act) cause patents to be issued in favor of each claimant, as in other cases. The survey was made in 1840, by order of the surveyor general of Illinois and Missouri, which was duly returned, approved, and recorded. We are of opinion that the act of 1823 conferred on the grantee an incipient title, and reserved to the 336 SUPREME COURT. Bryan et al. v. Forsyth. executive department administering the public lands the authority to settle the boundaries by actual survey among the claimants; and until this was done, the courts of justice could not interfere and establish boundaries. It was competent for Congress to provide, that before a title should be given to a confirmee, the exact limits of his confirmation should be ascertained by a survey executed by authority of the United States. (West v., Cochran, 17 How., 415.) When the surveys were made, and the plats returned and approved, and recorded by the surveyor general of Illinois and Missouri, and recognised as valid at the General Land Office, (as the patent to Forsyth shows it was,) it bound the parties to it, the confirmee and the United States; nor can either side be heard to deny, that the land granted by the act of 1823 is the precise lot Forsyth was entitled to; such being the settled doctrine of this court. (Menard’s Heirs v. Massey, 8 How., 313.) Neither can Bogardus or his assignee deny that he was concluded by the survey. His patent grants the land to him in fee, “subject, however, to all the rights of any and all persons claiming under the act of Congress of 3d March, 1823, entitled ‘An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.’ ” This patent is the only title set up by the defendants below; by its terms, all power to perfect the title of Forsyth, according to the act of 1823, was reserved to and retained by the department.of public lands, as effectually after the Bogardus patent was issued as before. The survey having bound the United States, and concluded Bogardus, Forsyth had a title by virtue of the acts of 1820 and 1823, and the survey, which was of a legal character; and he could maintain an action of ejectment on it, even had no patent issued. This is true beyond controversy, if the action had been prosecuted in a State court, where the State laws authorized suits in ejectment on imperfect titles. (Ross v. Borland, 1 Pet., 655; Chouteau v. Eckhard, 2 How., 372.) But it is insisted that in the courts oi the United States a different rule applies, and that, as a patent carries the fee, it is the better title. The case of Robinson v. Campbell (3 Wheat., 212) is supposed to be to this effect. There, the conflicting patents were made by the Commonwealth of Virginia, and the defendant attempted to, prove that a settlement had been made on the land in dispute by one Fitzgerald, and which preference right had been assigned to Martin, who obtained a certificate from the commissioners for adjusting titles to unpatented lands; which certificate was of anterior date to the junior patent, and was the source of title. It was nothing more than evidence that Martin had a preference to purchase the land, if » DECEMBER TERM, 1856. §37 Bryan et al. n. Forsyth. he saw proper to do so; and was not competent evidence in an action of ejectment, according to the laws of Virginia, or even of Tennessee. It was not an entry founded on consideration, but a right of abating an equity at the discretion of the settler. Keither in Virginia nor Kentucky (where the Virginia land laws prevail) is the defendant allowed to go behind the patent in a court of law, in order to give the patent a date from that of the entry on which the patent was founded. The question here is, on the effects of acts of Congress confirming claims to lands as valid, by which legislation the Government is concluded; and as respects these, it is settled, that after a survey is duly made, approved, and recorded at the surveyor general’s office, an action of ejectment may be maintained on such titles in the courts of the United States. It is a good prima facie title. (Stoddard v. Chambers, 2 How., 313; Le Bois v. Bramell, 4 How., 456; Bissell v. Penrose, 8 How., 317.) In Stoddard v. Chambers, this court held “that a confirmation by act of Congress vests in the confirmee the right of the United States, and a patent, if issued, could only be evidence of this.” Other cases followed this decision. By the third section of the act of July 4, 1836, it is provided that a patent shall issue to the confirmee in cases confirmed by that act. In this respect, the provisions of the acts of 1823 and 1836 are alike. Of course the patent in this instance can relate to a title which is valid against another title unaided by the younger1 patent. This disposes of the exception taken by the defendants below to the ruling of the court, that Forsyth’s title was superior1 to that of Bogardus. They next ask the court to instruct the jury, that by the' laws of Illinois they had such title as would bar an action of ejectment after seven years, accompanied by actual residence on the land sued for; and if the jury believe from the evidence that the defendants have so long had said possession, the1 plaintiff cannot succeed in this suit. There were two other instructions asked, requiring the court to instruct the jury that the plaintiff’s action was barred by the act of limitations of twenty years. The court refused to instruct as requested; “but, on the contrary, instructed the jury that the patent to Bogardus did not grant or convey the ground in controversy; and it being conceded that it was the only title the defendant had, there is no such title as under the statute of limitations protects the possession of the defendants.’’ This instruction was founded on an exception in the patent to Bogardus. It grants to him,. vol. xix. 22 338 SUPREME COURT. Bryan et al. v. Forsyth. and to his heirs and assigns, forever, “ subject, however, to all the rights of any and all persons under the act of Congress of March 3d, 1823, entitled ‘An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.’ ” When this patent was made, in 1838, the village lots had not been surveyed, and those that interfered with the land granted to Bogardus might never be claimed. Subject to this contingency he took his patent, and had a title in fee till 1840, when the village title of Forsyth was ripened into the better right. After that, those claiming under Bogardus held the position of one who claims protection by the act of limitations under a younger patent against an elder one. He has only the appearance of title. The patent to Bogardus was a fee-simple title on its face, and is such title as will afford protection to those claiming under it, either directly, or, having a title connected with it, with possession for seven years, as required by the statute of Illinois. The court below erred in cutting off this defence. In the progress of the trial in the Circuit Court, the plaintiff offered in evidence the printed report of Edward Coles, the register of the land office at Edwardsville, as found in the American State Papers, vol. 3, from pages 421 to 431, inclu-;sive, to which the defendant objected, because it was not, without proof of its authenticity, legal evidence. • But the court overruled the objection, and the report was given in evidence to the jury, to which ruling the defendants excepted. These State Papers were published by order of Congress, and .selected and edited by the Secretary of the Senate and Clerk >of the House. They contain copies of legislative and executive documents, and are as valid evidence as the originals are from which they were copied; and it cannot be denied that a record of the report of Edward Coles, as found in the printed journals •of Congress, could be read on mere inspe<#ion as evidence that it was the report sent in by the Secretary of the Treasury. The. competency of these documents as evidence in the investigation of claims to lands in the courts of justice has not been controverted for twenty years, and is not open to controversy. It is ordered that the judgment be reversed, and the cause remanded for another trial. Mr. Justice McLEAH dissenting. Sometime during the late war with England, a company of • militia hi the service of the United States, at Peoria, in Illinois, taking offence at the inhabitants of the village, burnt it. Congress, with the view of ascertaining the extent of the injury and the names of the sufferers, on the 15th May, 1820, DECEMBER TERM, 1856. Bryan et al. v. Forsyth. 339 passed an act, “that every person, or the legal representatives of every person, who claims a lot or lots in the village of Peoria, in the State of Illinois, shall, on or before the first day of October next, deliver to the register of the land office for the district of Edwardsville a notice in writing of his or her claim; and it shall be the duty of the said register to make to the Secretary of the Treasury a report of all claims filed with the said register, with the substance of the evidence thereof; and also his opinion, and such remarks respecting the claims as he may think proper to make; which report, together with a list of the claims which in the opinion of the said register ought to be confirmed, shall be laid by the Secretary of the Treasury before Congress, for their determination.” The report was made, as required in the above act, by E. Coles, Esq., register, on the 10th of November, 1820. By that report, No. 7, Thomas Forsyth claims “a lot of three hundred feet in front by three hundred feet in depth, French measure, in the village of Peoria, and bounded eastwardly by a street separating it from the Illinois river, northwardly by a cross street, westwardly by a back street, and southwardly by a lot claimed by Jacques Mette.” ' On the 3d of March, 1823, Congress passed an act, which declares, “ that there is hereby granted to each of the French and Canadian inhabitants, and other settlers, in the village of Peoria, in the State of Illinois, whose claims are contained in a report made by the register bf the land office at Edwardsville, in pursuance of the act of Congress approved May the 15th, 1820, and who had settled a lot in the village aforesaid prior to the 1st day of January, 1813, and who had not heretofore received a confirmation of claims or donation of any tract of land or village lot from the United States, the lot so settled on and improved, where the same shall not exceed two acres.” The second section made it the duty of the surveyor of the public lands of the United States, for that district, to cause a survey to be made of the several lots, and to designate on a plat thereof the lot confirmed and set apart to each claimant, ^orwar(i the same to the Secretary of the Treasury, who shall cause patents to be issued in favor of such claimants, as in other cases. In the action of ejectment brought by Forsyth, as above stated, to recover possession of lot No. 7, described, it was ^iat upon the trial it shall be admitted that the plain-tiit has the title of Thomas Forsyth in and to the land sued /pr descent, and purchase, and conveyance; and also that c,e^endauts ^avG tad the actual possession of the land for which they are respectively sued, by residence thereon, for ten 340 SUPREME COURT. '■Bryan et al. v. Forty th. years next preceding the commencement of the suit; and that John L. Bogardus, under whom they claim, had possession of the southeast fractional quarter of section nine, in township eight north, of range eight east, upon which the land sued for is situated, claiming the same under pre-emption right more than twenty years before the commencement of these suits, but he never had the actual possession of that part of said fractional quarter section sued for; and that said “defendants respectively had vested in them, before the commencement of this suit, all the right of Bogardus.” A patent was issued to Bogardus for the southern fractional quarter of section nine, in township eight north, of range east, containing twenty-three acres and ninety-three hundredths of an acre, &c.; “subject, however, to all the rights of any and all persons claiming under the act of Congress of 3d March, 1823, entitled ‘An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.’ ” The defendants rely on the statute of limitations of 1827, which requires that the possession should be by actual residence on the land, under a connected title in law or equity, deducible of record from the»United States. The court instructed the jury that the title claimed under Bogardus did not protect them under the statute. This is held by this court to be an error, for which the judgment is reversed. The error of the court consists in giving a construction not only to a written instrument, but to a patent. That it is the province of the court to construe such a paper, will not be controverted. The patent conveyed to Bogardus the land described, “subject, however, to all the rights of any and all persons claiming under the act of Congress of the 3d March, 1823,' entitled ‘ An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.’ ” The lot in controversy was claimed under the act of 1823, which declared, “that there is hereby granted to each of the French and Canadian inhabitants, and other settlers, in the village of Peoria, in the State of Illinois, whose claims are contained in a report made by the register of the land office at Edwardsville, in pursuance of the act of Congress approved May 15th, 1820, and who had settled a lot in the village aforesaid prior to the 1st of January, 1813, and who have not heretofore received a confirmation of claims or donation of any tract of land or village lot of the United States, the lot so settled upon and improved, where the same shall not exceed two acres,” &c. The right made subject to the patent was a legal right; it DECEMBER TERM, 1856. 341 Bryan et al. V. Forsyth. was a grant by Congress, which this court has recognised as the highest grade of title. A patent is issued by a ministerial officer, who is subject to error, but the legislative action is not to be doubted. • The survey of the lot was not made until 1st September, 1840, and the patent was issued to Forsyth, December 16,1845. In the case of Ballance v. Forsyth, (13 Howard, 24,) this court say: “If the patent to Bogardus be of prior date, the reservation in the patent, and also in his entry, was sufficient notice that the title to those lots did not pass; and this exception is sufficiently shown by the acts of the Government.” And again: “ The statute did not protect the possession of the defendant below. His patent excepted those lots; of course, he had no title under it for the lots excepted.” Until the case before us was reversed for error by the district judges who conformed to the above decision, I did not suppose that any one could doubt the correctness of the decision. Bogardus, in 1838, took a grant from the United States, subject to Forsyth’s right, thereby recognising it, and consequently from that time he held it in subordination to Forsyth’s title. If it be admitted that the fee did not pass to Forsyth until the patent issued in 1845, the patent had relation back to the act of 1823, and operated from that time. The report of the register defined the boundaries of the lot as specifically as the survey, by reason of which, the lot was as well known, it is presumed, to the public, before the survey as afterwards. This may not have been the case with all the lots. Let any one read the patent to Bogardus, and ask himself the question, whether the United States intended to convey the lots to which the patent was made subject, and the answer must be, that they did not. By the act of 1823, they granted those lots to the French settlers, who, by the report of the register, were entitled to them under the act of 1820. It would have been an act of bad faith in the Government, after the act of 1823, to convey any one of those lots; and, on reading the patent, it is clear they did not intend to convey any one of them. It is said, suppose the French settlers had not claimed the lots, would not Bogardus have had a right to them ? Such a supposition cannot be raised against the facts proved. The title of Forsyth was of prior date, and of a higher nature, than that of Bogardus. His title was subordinate, as expressed upon its face. In the case of Hawkins v. Barney’s Lessee, (9 Curtis, 428,) the same question was before' this court. Barney conveyea fifty thousand acres of land, in Kentucky, to Oliver; sometime afterwards, Oliver reconveyed the same tract to Barney, in 842 SUPREME COURT. Ballance v. Papin et al. which deed were recited several conveyances of parcels of the tract to several individuals, and particularly one of 11,000 acres, to one Berriman. Barney brought an ejectment against Hawkins, and proved th^f he had entered on the fifty thousand acre tract. This court held his action could not be sustained, unless he proved the defendant was not only in possession of the large tract, but he must show that the possession was not upon any one of the tracts sold and conveyed. To apply the principle to the case before us. Had Bogardus brought an action of ejectment to sustain it, he must have proved the trespasser was within his patent, and outside of any one of the reserved lots. The words, 11 subject to all the rights of any persons under the act of 1823,” showed that those rights were not granted by the patent; and if Bogardus himself could not have recovered, it is strange how the defendants could recover, who claim to be in possession under his patent. The agreed case admits that the “defendants respectively had vested in them, before the commencement of this suit, all the right of Bogardus.” But whether this possession under the right of Bogardus was for a day or a year, is nowhere shown by the evidence; and unless I am mistaken, the statute requires a seven years’ possession under title to protect the trespasser, and in effect give him the land. Bogardus was in possession, claiming a pre-emption, but I do not understand, from the opinion of the court, that such a possession will run, even against the French claimants. Bogardus himself was a trespasser on the lands of the United States, and until he received his patent in 1838, I suppose he could not set up a claim to the land under title. I hold, and can maintain, that the instruction of the district judge was right, in saying that the patent of Bogardus did not grant or convey the ground in controversy. And if it did, there was no such possession under it, which, by the statute of limitations, protected the right of the defendants. Charles Ballance, Plaintiff in Error, v. Adolph Papin, Henry Papin, and Mary Atchison. Under the circumstances described in the preceding case, if there was no sufficient evidence of a survey under the act of 1823, the title claimed under that act could not be held superior to that claimed under a patent issued in the interval between the act of 1823 and the alleged survey. This case was brought up, by writ of error, from the Circuit Court of the United States for the northern district of Illinois. DECEMBER TERM, 1856. 343 United States v. Peralta et al. It was similar in most of its features to the preceding case, and was argued by Mr. Ballance for the plaintiff in error, and submitted on printed arguments by Mr. Williams and Mr. Gamble for the defendants. Mr. Justice CATRON delivered the opinion of the court. In the case of Charles Ballance against Papin and Atchison, ’ the same title was relied on by the defendant below (Ballance) that was set up in defence in the preceding case of Forsyth v. Brien and Rouse. The plaintiff sued to recover a village lot in Peoria, No. 42, confirmed to Fontaine, in right of his wife, Josette Cassarau, dit Fontaine. A plat of lot No. 42 was given in evidence, and is found in the record, but no certificate of the surveyor accompanies this plat, and without such certificate there is no evidence that lot No. 42 was lawfully surveyed. The act of 1823 (sec. 2) required that a survey should be made of each lot confirmed to the claimant, and a plat thereof forwarded to the Secretary. The evidence of a legal United States survey is not a mere plat, without any written description of the land by metes and bounds; neither the plat, nor less proof than a written description, will make a record on which a patent can issue. That most accurate evidence of separate surveys of the village lots of Peoria exists, we know; but as none is found in this record of lot No. 42, it follows, from the reasons given in the previous case, that no title was adduced in the Circuit Court that authorized it to reject the instructions • demanded by the defendant; that, comparing the titles of the parties by their face, the defendant’s was the better one. But as the same question of the application of the act of limitations arises in this case as it did in the former one, it must of course have been reversed, had the certificate of survey been found in the record. We therefore order that the judgment be reversed, and the cause remanded for another trial to be had therein. Mr. Justice McLEAN dissented. The United States, Appellants, v. Domingo and Vicente Peralta. Where a claimant of land in California produced documentary evidence in his favor, copied from the archives in the office of the surveyor general and other original gramts by Spanish officers, the presumption is in favor of the power of those officers to make the grants. 344 SUPREME COURT. United States v. Peralta et al. If the power be denied, the burden of proof is upon the party who denies it. The history of California, with respect to the power of its Governors to grant land, examined. The boundaries of the tract of land, as decreed by the District Court, affirmed. This was an appeal from the District Court of the United States for the southern district of California. The nature of the claim, and a list of the documents in support of it, are given in the opinion of the court. The decree of the District Court was as follows, viz: That the claim presented in the petition filed in this case, for the place called San Antonio, is valid to the whole extent of its bounds, to wit: having for its northern boundary a line commencing on the bay of San Francisco, at a point where there are close to the said bay the two cerritos, as described in the first possession given by Martinez to Louis Peralta, on the 16th of August, 1820, running from the said bay eastwardly along by the southern base of the cerritos of San Antonio up a ravine, at the head of which there is a large rock or monument looking to the north, described in evidence as the Sugarloaf Rock; thence by the southern base of said rock to the comb or ctest of the coast range of mountains, or the Sierra; thence for the western boundary a line running along the comb of the said Sierra, until it reaches the eastern extremity of a line, beginning on the said bay of San Francisco at the mouth of the deep creek of San Leandro, and running eastwardly up the said creek to its head or source in the Sierra, and to the comb or crest thereof, which last line is the southern boundary of the land of San Antonio; and by the said bay of San Francisco, from the mouth of the said deep creek of San Leandro up to the beginning of the said line, which has been described as the northern boundary of said tract, which line along the bay constitutes its western boundary. And it is hereby further adjudged, ordered, and decreed, that there be confirmed to the said Domingo and Vicente Peralta, the northern portion of said land of San Antonio, bounded as follows: On the north by the northern boundary of said tract of San Antonio as above described, on the east by the comb of the said Sierra, on the west by the bay of San Francisco, and on the south by a ravine a short distance south of the buildings in the town of Oakland, on the north of which ravine there is a small house in sight of the public road, being the line of division between this land and the land of Antonio Peralta, which line extends from the said bay to the most eastern boundary of the rancho of San Antonio. The United States appealed from this decree. DECEMBER TERM, 1856. 345 United States v. Peralta et al. It was argued by Mr. G-illet for the United States, and by Mr. Rose and Mr. Bibb for the appellees. Mr. Justice GRIER, delivered the opinion of the court. This case originated before the commissioners for ascertaining and settling private land claims in California. Domingo and Vicente Peralta claimed as grantees and devisees of their father, Luis Peraita. The documentary evidence filed in support of the claim consists of a true copy from the archives in the office of the surveyor general of California, containing, so far as they are material in the present inquiry, the following averments: 1. The petition of Luis Peralta to the Governor for a grant of land, extending from the creek of San Leandro to a small mountain adjoining the sea beach, at the distance of four or five leagues, for the purpose of establishing a rancho, dated June 20, 1820. 2. The decree of Governor Sola, therein directing Captain Luis Antonio Arguello to appoint an officer to place the petitioner in possession of the lands petitioned for, dated August 3, 1820. 8- Order of Captain Arguello, dated August 10, 1820, detailing Lieut. Don Ignacio Martinez for that purpose. 4. The relinquishment of Father Narciso Duran, on behalf of the mission of San Jose, of any claim to the land, and reserving the privilege of cutting wood on the same, which, he says, should remain in common, dated August 16,1820. 5. Under the same date, the return of Lieut. Martinez, upon the order to give the possession, describing the boundaries, &c. 6. The decree of the Governor, directing a portion of the lands assigned to Luis Peralta, by the foregoing act of possession, to be withdrawn, upon the reclamation of the mission of San Francisco, who claimed that the said portion of the lands was then in the occupancy of the mission as a sheep ranch. 7. The consent of Father Juan Cabot and Paloz Ordez, ministers of the mission, that the boundaries of the land solicited by Luis Peralta should be established at the rivulet, at the distance of three and a half to four leagues from the rancho-house of the mission. 8. The return of Maximo Martinez upon Governor Sola’s second decree for the delivery of possession, filing the boundaries in accordance with the claim of the mission, at a rivulet which runs down from the mountains to the beach, where there is. a grove of willows, and about a league and a half from the cerito (little mountain) of San Antonio, in the direction of San Leandro. 346 SUPREME COURT. United States v. Peralta et al. 9. A document dated October, 1822, and signed Sola, setting out, that on that day was issued in favor of Sergeant Luis Peralta, by the Governor of the province, the certifying document for the land which has been granted him, as appears by the writ of possession which was given him by the lieutenant of his company, Don Ignacio Martinez, in conformity with the orders of the Government. 10. A letter from Luis Peralta, protesting against the claim of the mission, dated October 14th, 1820. 11. A representation from Captain Don Luis Arguello to the Governor, dated June 23, 1821, advocating the rights of Sergeant Peralta, in opposition to those of the mission, to the land in controversy; and, lastly, the description of the land returned by Luis Peralta, in obedience to the Government, of the 7th Of October, 1827. The claimants gave in evidence, also, the original grant from Governor Sola to Luis Peralta, dated 18th of August, 1822; the petition of Luis Peralta to Governor Arguello, praying the restitution of the lands which had been taken from him on the demand of the mission; and the decree of Arguello, making such restitution, and directing him to be again put in possession by the same officer who had executed the former act of possession. To this order, Maximo Martinez made a return, duly executed, certifying that the grantee had .been newly put in possession of the place called “ Cerito de St. Antonio, and the rivulet which crosses the place, to the coast, where is & rock looking to the north.” It was further shown, from the public records, that on the 9th of April, 1822, the civil and military authorities of California formally recognised and gave in their adhesion to the new Government of Mexico, according to the plan of Iguala and treaty of Cordova. Also, that in 1844, Ignacio Peralta, one of the heirs of Luis Peralta, petitioned the Government for a new title to the land claimed, in consequence of the original title-papers having .been lost or mislaid. The archives show, also, that on the 13th of February, 1844, an order was made by Micheltorena, that a title be issued. Of the same date, there is the usual formal document “ declaring Don Luis Peralta owner in fee of said land, which is bounded as follows: “ On the southeast by the creek of San Leandro; on the northwest by the' creek of Los Ceritos de San Antonio, (the small hills of San Antonio;) on the southwest by the sea; and.on the northeast by the tops of hills range, without prohibiting the inhabitants of Contra Costa from cutting wood for their own use, they not to sell the same.” This.document contains an order that “this espediente be transmitted to the depart DECEMBER TERM, 1856. 347 "United States v. Peralta et al. mental assembly for their approval,” but nothing further appears to have been done, nor is the signature of Micheltorena attached to the record. The authenticity of these documents is admitted. The objections urged against their sufficiency to establish the claim are: first, that the officers had no power to make grants of land; and, second, that the northern boundary of the land described does not extend beyond a certain creek or stream, known by the name of San Antonio. This would exclude about one half of the claim. We are of opinion that neither of these objections is supported by the evidence in the case. We have frequently decided that “the public acts of public officers, purporting to be exercised in an official capacity, and by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given or subsequently ratified.” To adopt a contrary rule would lead to infinite confusion and uncertainty of titles. The presumption arising from the grant itself makes it prima facie evidence of the power of the officer making it, and throws the burden of proof on the party denying it. The general powers of the Governors and other Spanish officers to grant lands within the colonies in full property, and without restriction as to quantity, and in reward for important services, were fully considered by this court in the case of United States v. Clarke, (8 Peters, 436.1 The appellants, on whom the burden of proof is cast, to show want of authority, have produced no evidence, either documentary or historical, that the Spanish officers who usually acted as Governors of the distant provinces of California were restricted'in their powers, and could not make grants of land. The necessity for the exercise of such a power by the Governors, if the Crown desired these distant provinces to be settled, is the ’greater, because of their distance from the source of power. By the royal order of August 22, 1776, the northern and northwestern provinces of Mexico were formed into a new and distinct organization, called the Internal Provinces of New Spain. This organization included California. It conferred ample powers, civil, military, and political, on the Commandant General. The archives of the former Government also show, that as early as 1786, the Governors of California had authority from the Commandant General to make grants, limiting the number of sitios which should be granted. In 1792, California was annexed to the viceroyalty of Mexico, and so continued till the Spanish authority ceased. An attempt to trace the obscure history of the various decrees, orders, and regulations of 348 SUPREME COURT. United States v. Peralta et al. the Spanish Government on this subject, would be tedious and unprofitable. It is sufficient for the case, that the archives of the Mexican Government show that such power has been exercised by the Governors under Spain, and continued to be. so exercised under Mexico; and that such grants, made by the Spanish officers, have been confirmed and held valid by the Mexican authorities. Sola styles himself political and military Governor of California. He continued to exercise the same powers after his adhesion to the Mexican Government, under the provisions of the plan of Iguala, and the twelfth section of the treaty of Cordova. The grant in fee, given by Sola, was after the revolution. The Government of Mexico, since that time, has always respected and confirmed such concessions, when any equitable or inchoate right, followed by possession and cultivation, had been conferred by the Governors under Spain. The case of Arguello (18 How., 540) was that of a permit by Governor Sola, afterwards confirmed by the Mexican Government and by this court. The plaintiff in efror has not been able to produce anything from historical documents or the archives of California, tending to show a want of power in the respective officers in this case. On the contrary, the presumption of law is confirmed by both. The order of Micheltorena, in 1844, for the granting the new title to Peralta, is itself evidence of the usage and custom, and that the acts of Sola and Arguello were considered valid, and that the title, whether equitable or legal, conferred to them, should be respected and confirmed by the Government. As the validity of the petitioner’s title has been assailed on the ground of want of authority alone, it is unnecessary to notice more particularly the various documents exhibited in support of it. The grant by Sola of a portion of the tract of which Peralta had been originally put in possession, is a complete grant in fee for that portion. The restoration by Arguello of the original boundaries, by decree and act of the public officer, may not have the character of a complete grant; but it is of little importance to the decision of the case, whether it conferred only an inchoate or equitable title, connected with an undisputed possession of thirty years, and confirmed again in 1844, by the order of the Governor of California; its claim for protection under the treaty with Mexico cannot be doubted, notwithstanding its want of confirmation by the departmental assembly. The only remaining question is the position of the northern boundary line. ■ Peralta’s original petition, in June, 1820, described the land DECEMBER TERM, 1856. 849 McCullough et al. v. Roots et al. desired, as beginning at a creek called San Leandro, “and from this to a white hill, adjoining the sea beach, in the same direction, and along the coast four or five leagues.” The return, of Ignacio Martinez, the officer who executed the order for delivery of possession on the 16th of August, 1820, describes “the boundaries which separate the land of Peralta, to be marked out as follows: The deep creek called San Leandro, and at a distance from this, (say five leagues,) there are two small mountains, (cerritos;) the first is close to the beach; next to it follows the San Antonio, serving as boundaries, the rivulet which issues from the mountain range, ' and runs along the foot of said cerrito of San Antonio, and at the entrance of a little gulch there is a rock elevating itself in the form of a monument, and looking towards the north.” This is the description of the northern boundary. It refers to stable monuments—two hills, a rjvulet passing at their foot, and a monumental rock. In other documents, Peralta speaks of this line “as the dividing boundary with my neighbor, Francisco Castro.” Again, in the return of Ignacio Martinez to the order of the Governor, Arguello, in 1823, to redeliver the possession to Peralta, up to his original boundary, he describes this within boundary by the same monument, “the cerrito San Antonio, the arroyito or rivulet which crosses the place to the coast, where is a rock looking to the north.” Lastly, the title of confirmation by Micjieltorena in 1844, as quoted above, though not in the very words of the above documents, clearly describes the same monuments. These hills, rivulet, and rock, are well-known monuments, and their position is satisfactorily proved. The testimony of the opinions of witnesses who have but lately arrived in the country, who are ignorant of the language and traditions of the neighborhood and who are all interested in defeating the claim of the petitioners, can have little weight against the knowledge of others who were present when the lines were established, some thirty years ago, and have known these boundaries till the present time. The decree of the Circuit Court is therefore affirmed. Mr. Justice DANIEL dissented. John McCullough and Cyrus D. Culbertson, Plaintiffs in Error, v. Gurnsey Y. Roots and Erastus P. Coe. Where a sale was made of merchandise, and two parties, viz: Roots & Coe as one party, and Henry Lewis as the other party, both claimed to be the vendors, and 850 SUPREME COURT. McCullough et al. v. Roots et al. to be entitled to the purchase-money, it was proper, under the circumstances which existed in the previous relations of these parties towards each other, for the court to instruct the jury as follows, viz: « 1. If they shall find that the merchandise had been made subject to the order of Roots & Coe; that it was sold by them in their own name; that at the time of sale it belonged to them, or that they had an interest in it fqr advances and commissions, and an authority as agents to dispose of it; and that it was.delivered to and received by the vendee in pursuance of such sale, then Roots & Coe were entitled to the purchase-money. “ 2. That although the jury may find from the evidence that the merchandise was sold to the purchasers by Henry Lewis, yet if they also find that it belonged to Roots & Coe, or to the persons for whom they acted as agents, and if the latter, that Roots & Coe had an interest in and control over the merchandise to cover advances and commissions; that the purchasers subsequently promised to pay Roots & Coe the purchase-money, and that the suit was instituted before the price had been paid to Henry Lewis, then Roots & Coe were entitled to the purchase-money.” The existence of warehouse receipts, given by another person, was not a sufficient reason to justify the purchasers in refusing to pay for the property which they had purchased, and in the possession of which they had not been disturbed. Under the circumstances of the case, Roots & Coe had a right to consider Henry Lewis as their agent, and to adopt his acts. The purchaser had no right to allege that Henry Lewis was a tort feasor. Roots & Coe, having made the contracts, and having an interest to the extent of their commissions, had a right to maintain the suit. This case was brought up, by writ of error, from the Circuit Court of the United States for the district of Maryland. The nature of the case is fully explained in the opinion of the court. It was argued by. Mr. Schley for the plaintiffs in error, and by Mr. Dobbin and Mr. Johnson for the defendants. Mr. Justice CAMPBELL delivered the opinion of the court. The plaintiffs below (Roots & Coe) sued the defendants (Me- • Cullough et al.) in general indebitatus assumpsit, in the Circuit Court, for the price of a quantity of hams in tierces which they claim to have sold and delivered to them. The plaintiffs are merchants in Cincinnati, Ohio, who, on their own account, and as agents for Adams & Buckingham, of New York, in November, 1853, contracted with Henry Lewis, of the same city, to make advances upon his consignments of bacon, pork, and similar articles of provisions, which these consignees were to dispose of, and, after reimbursing the advances and expenses, were to appropriate the net profits in part to the payment of a pre-existing debt due to those firms. The course of business was, to suffer Henry Lewis to prepare the articles for the market, and to superintend the sales, under a condition of accounting for their proceeds to the consignees. The advances were usually made upon the warehouse receipts of a firm of which Lewis was a partner, generally before the property spe- DECEMBER TERM, 1856. 351 McCullough et al. v. Roots et al. eified in them was in the warehouse. The receipts expressed articles which the warehouseman expected either to prepare or to procure otherwise, and the money advanced was generally intended to aid that object. To secure themselves from the contingency of any failure in these anticipations, the plaintiffs (Roots & Coe) sometimes exacted the guaranty of Samuel Lewis, a brother of Henry Lewis. This generally took the form of a warehouse receipt made by him, corresponding to the others. The articles designated in the receipts of Samuel Lewis, it was understood, would be supplied by Henry—Samuel being unconnected with any business of this description on his own account. In April, 1854, Roots & Coe were the holders of a number of receipts of Samuel Lewis for provisions, which Henry Lewis was unable to supply. The plaintiffs (Roots & Coe) agreed, that if Samuel Lewis would secure the consignment of a quantity of hams, by executing a new receipt therefor, they would extend their advances to Henry Lewis until he could make the best disposition of them. This was assented to, and the contract hereafter mentioned was made. Samuel Lewis had not interfered with the business of Henry ; nor did he control the property which his receipts from time to time specified. The property was left in the charge of Henry Lewis, to be appropriated according to his contract with the plaintiffs, (Roots & Coe,) of which the receipt was treated as a guaranty. The receipts executed at this settlement bear date the 4th of April, 1854, and are as follows: “Received in store of Henry Lewis, and subject to the order of Roots & Coe, but not accountable for damages by fire, four hundred and fifteen hogsheads sugar-cured hams in pickle, containing nine hundred pounds net weight; said hams to be smoked and canvassed within thirty days, and delivered to said Roots & Coe, or their order, said Roots & Coe being responsible for the smoking and canvassing the same; and it is further agreed between the parties, that when the above hams are delivered to said Roots & Coe, then and in that case my former warehouse receipts for two thousand five hundred barrels of mess pork, four hundred barrels of lard, and one hundred thousand pounds of shoulders frbm the block, shall be given up and cancelled; but I am not responsible for smoking or canvassing the same, that being a matter between said Henry Lewis and Roots & Coe. • (Signed) Samuel Lewis.” At the same time, Henry Lewis gave the following receipt: “Whereas Roots & Coe hold Samuel Lewis’s warehouse 352 SUPREME COURT. McCullough et al. V. Roots et al. receipt of this date for four hundred and fifteen hogsheads sugar-cured hams in pickle, each hogshead containing nine hundred pounds net weight, to be delivered within thirty days: Now, I do hereby agree to smoke, canvass, yellow-wash, and pack the same, free of charge to Roots & Coe; and also agree not to require Roots & Coe to refund to me the freight on the same from Indianapolis to this place, being one hundred and fifty cents per hogshead, which I have paid, in consideration of having received an advance on the above-mentioned hams from Adams & Buckingham, through said Roots & Coe. But in case I should purchase and pay for the same within thirty days from this date, then Roots & Coe agree to refund the freight from Indianapolis to this point, being one dollar and fifty cents per hogshead. Henry Lewis.” At the time this contract was made, the property specified in it was not in store at Cincinnati, but a portion was delivered to the plaintiffs (Roots & Coe) the day after its date. The remainder came consigned to their order during that and the following month, and was deposited in the warehouse of Henry Lewis, under their directions; and Henry Lewis was employed to canvass, yellow-wash, brand, and pack in tierces the hams, ready for the market; for this, Roots & Coe were to pay Lewis his bill of charges as a further advance. "While the property was in this condition, a disagreement arose between Henry Lewis and Roots & Coe, relative to a deficiency in the weight of the hogsheads, and whether the warehouse receipt of Samuel Lewis amounted to”a warranty of the weights. In May and June, 1854, the defendants below purchased two'hundred and-twelve tierces of these hams, at a specific price. Roots & Coe and Henry Lewis respectively claim to have made this sale, and both were present when it was made. The money arising from the sale was designed for the former, and the sale was entered on their books, and there is strong evidence to the fact that the defendants promised to pay their bill for the hams in June, 1854. But before the payment, Henry Lewis insisted upon a surrender of the warehouse receipts of Samuel Lewis; and that being refused, he directed the defendants to appropriate the price as a credit on the joint.debt of Samuel Lewis and himself to them; and this was done by them accordingly. Upon the trial in the Circuit Court, the plaintiffs in’error moved for fourteen distinct instructions to the jury, which the court declined to give, but gave in their stead the following charge: “1. If the jury shall find, from the evidence in this case, DECEMBER TERM, 1856. 353 McCullough et al. v. Roots et al. that the said two hundred and twelve tierces were part of the hams contained, in the four hundred and fifteen hogsheads mentioned in the receipt of April 4, 1854; that they were sold by the said plaintiffs, in their own name, to the said defendants ; that at the time of the said sale the said hams belonged to the said plaintiffs, or that they had an interest in the same for advances or commissions, and authority as the agents of Adams & Buckingham to dispose of the same; and that said hams were delivered to, and received by,